April 2018: A Deep Dive into Circumstantial and Confessional Evidence

This essay provides a detailed analysis of the legal tests applied to determine the sufficiency of cases based on circumstantial evidence, focusing on the 'strands in a rope' and 'links in a chain' concepts. It further explores the considerations for the admissibility of confessional evidence, emphasizing voluntariness, reliability, and judicial discretion. The essay examines the common law and statutory requirements, including the impact of threats, promises, and inducements on the voluntariness of confessions. It also discusses the importance of cautioning suspects, providing support persons for vulnerable individuals, and the potential exclusion of evidence based on unfairness or public policy considerations, referencing key cases and relevant legislation such as the Criminal Law Amendment Act 1894 (Qld) and the Police Powers and Responsibilities Act 2000 (PPRA).

April 2018
1. What test is applied to determine whether a case based entirely on circumstantial evidence
is sufficient? Explain the test.
Entirely circumstantial cases –
Person can be convicted on circumstantial evidence but jury requires direction on standard of proof.
 Person can be convicted on entirely circumstantial evidence: Plomp; Weissensteiner
 Direction is required:
Direction to the jury
Each element of crime must be proved BRD. The ultimate inference of guilt must also be established
BRD. However, every piece of evidence used to prove an element does not need to be proven.
Shepherd Direction
A Shepherd Direction is given when some issue in case must be proved BRD because it is an
indispensable link in a chain of reasoning.
However, where the case is built on a cumulative mass of circumstantial evidence, the extent to
which individual facts need to be proved BRD varies accordingly to whether evidence is analogous
to:
1. ‘strands in a rope’ (where no ‘strand’ must be proved to any standard)
2. ‘Links in a chain’ (where the link must be proved BRD)
Type 1 – ‘Strands in a rope’ (most common)
 Cumulative evidence – no particular ‘strand’ needs to be proved to the jury to make the
inference: Jones v R
Court is concerned with final conclusion (not steps to get there)
 QCA approved in Shepherd ‘In considering a circumstantial case, all circumstances
established by the evidence are considered and weighed in determining whether an
inference consistent with innocence reasonably open on the evidence’.
Type 2 – Indispensable ‘links in a chain’ (rare)
 Unlike ‘rope’ cases, requires one fact that is relied upon by the Crown that is so critical
to their case that it must be proved BRD: Chamberlain v R
Case depended on baby being killed in front seat – if this couldn’t be proved – theory of
case failed
 Each indispensable link has to be proved BRD: Shepherd v R

Shepherd Direction (extent to which jury should be directed).
Considerations that are given when directing jury to what extent they need to be
convinced:
1. In a circumstantial evidence case, it is usual to give a direction that guilt should be
the only relational inference that can be drawn from the circumstance – in some
instances such a direction is not necessary;
2. There is no rule that in such cases no inference of guilt can be properly drawn other
from facts which have been proved BRD;
3. One should sometimes identify immediate facts (eg – drop of blood in dingo case)
constituting indispensable links in a chain of reasoning towards an inference of guilt;
if so it may be appropriate to tell the jury that such facts must be proved BRD;
4. Where the evidence consists of strands in a cable rather than links in a chain, it will
not be appropriate to give the direction just mentioned in (3).
E.g of circumstantial evidence – Motive; opportunity; habit; conduct.
Benchbooks number 48 ‘Circumstantial Evidence’.
2. What considerations apply to determine the admissibility of confessional evidence?
A confession is a written or oral admission of full guilt, which is an exception to the hearsay
rule because of its reliability, provided it is made voluntarily. R v Doyle [1987] 2 Qld R 782
Confessions are only relevant in criminal cases.
When a person confesses to something – they are confessing to an act or omission.
A confession must be established by evidence – unless the confession itself is entered as a
formal admission using CC s 644(1).
In order to be admissible the confession must:
 Be voluntary;
 Be reliable (Even though made out of court, admissible because it is inherently reliable
(exception to hearsay). The reliability of a confession is tested objectively)
 Not be excluded in the exercise of an overall judicial discretion (R v Swaffield; Pavic v R
(1998) 192 CLR 159).
Benchbooks 36 – out of court confessional statements
Voluntariness (1) –
Key issue – confession is only admissible if it is voluntary.
Evidence of a confession is only admissible against the person who made it.
The onus is on the Crown to prove on a B.O.P that it was made voluntarily.
Common law –

A confession is only admissible when it is made voluntarily; that is, in the exercise of a free
choice to speak or to be silent; and not in response to oppression, threat, promise or
inducement held out by a ‘person in authority’.
Considerations (McDermott v The King 1948)
If accused spoke because overborne, confession can’t be received.
If statement is result of duress, intimidation, persistent importunity, sustained or undue
insistence or pressure; or induced by a person in authority (by fear of prejudice or hope of
advantage) – it can not be voluntary
A confessional statement cannot be voluntary if it is preceded by an inducement held out by
a person in authority and the inducement has not been removed before the statement is
made.
‘Person in authority’ includes offices of police and the like, the prosecutor, and other
concerned in preferring the charge: McDermott
In determining whether a suspect’s will was overborne, a subjective test is applied. The
focus is on the effect of the inducement or the oppressive conduct on the free will of the
suspect.
In Tofilau v R the voluntariness test was divided into two parts:
1. The inducement rule – s 10 Criminal Law Amendment Act 1894
Fairness question (Bunning v Cross)
2. Basal involuntariness
- Is an application of a certain kind of external force to the confessor (Tofilau v R)
- Occurs only if person is reasonably perceived by the accused to hold the
authority of the State (Ibid)
- ** expanded p 53-4
Statute (confirms common law) –
Test – Confession in criminal proceeding inadmissible if induced by any threat or promise of
some person in authority: Criminal law Amendment Act 1894 (Qld) s 10; s 416 PPRA 200
And every confession made after such threat or promise shall be deemed to have be
deemed to have been induced by it unless the contrary can be shown: Ibid
Generally, a confession will only be admissible if it was recorded (in audio, video or writing);
ss 436 and 437 PPRA.
Reliability (2)-
- The reliability of a confession is tested objectively: Swaffield
- Reliability can overlap with voluntariness i.e if confession is obtained from duress
then it is not reliable.

- Reliability still needs to be considered separately from voluntariness: Swaffield. For
e.g:
- accused may be mentally unstable
- consider Foster v R
Accused was held to be vulnerable due to : age, age and aboriginal
background.
‘The officer may be honest and sincere, but his position of
superiority is so great and overpowering that a ‘statement’ may be ‘taken’
which seems damming but which is in fact very unreliable.’ (Foster v R).
- In order to be admissible, confession must be voluntary and reliable.
Usually, the Crown will make every step to validate the confessional
statement: ie. Film you doing something/go over the scene trying to tie
everything together.
Discretion (3) –
Even if a confession was voluntary, it may be excluded by exercise of the trial judge’s
discretion where:
(a) It would be unfair to the accused to admit it; or
(b) The confession was unlawfully, unfairly or improperly obtained (The Public Policy
Discretion).
EAQ s 130 and R v Swaffield: Even if confession deemed voluntary, a judge can exercise
discretion to exclude where:
- Unfair to accused to admit evidence 9Christie direction)
- Confession was unlawfully, unfairly, improperly obtained (i.e on grounds of
public policy).
The discretion is especially applied if it is an unfair confession where one has not been given
the proper entitlement to speak or be silent.
- Often, this happens because you have been induced to give a confession by
some inappropriate method.
The test of unfairness is subjective: R v Pfizner
PPRA requirements:
- A P/O must, before a relevant person is questioned, caution the person in the way
required under the responsibilities code (specific wording): s 431 PPRA
- A P/O must not question an adult Aborigine or Torres Straight Islander without first
notifying ATSI legal aid and allowing a support person: s 420 PPRA
- A P/O must not question a child without first allowing a support person to be present: s
421 PPRA
- A P/O must not question a person with impaired capacity without first allowing a
support person to be present: s 422 PPRA
- P/O must delay the questing of an intoxicated person until the influence of the liquor or
drug no longer affects the person’s ability to understand his or her rights and to decide
whether or not to answer questions: s 423(2) PPRA

- A ROI with confessions may be dispensed with in the ‘interests of justice’ at the
discretion of the court: s 439(2) PPRA.
—————- finish
Discretion to exclude confessions
Even if a confession was voluntary, it may be excluded by the trial judge’s discretion.
Two main discretions:
The Christie or Lee discretion (based on fairness to the defendant) and:
The Ireland Discretion (based on public policy regarding police methods).
The discretion is normally exercised –
when the conduct of the police or other persons involved in gathering the evidence is
illegal or otherwise improper; (Public Policy discretion: the Ireland Discretion. Bunning v
Cross); and
It would be unfair to the accused to admit it (Christie discretion).
Four relevant questions to be considered in order from Foster v R: (Pollard?)
1. Is the confession voluntary ?
2. Is the confession apparently reliable?
3. Is the confession unfair to the accused (fairness discretion) Christie discretion
4. Did the police officer engage in unlawful or improper conduct that requires the
rejection of the confession? (Public policy discretion) Ireland discretion.
In Swaffield, the court recognised the overlap between (2) and (3) and phrased the
second issue as: ‘Do the circumstances of the case mean that it would be unfair to the
accused to admit the evidence because it was not reliable?’
The court in Swaffield also distinguished the fairness and public policy discretion’s:
Fairness discretion: admission of a confession which, by reason of the conduct of the law
enforcement officers, is dubious of reliability.
Public policy discretion: admission of a confession which is both voluntary and
apparently reliable but which would not have been made or would not have made in the
particular form but for the illegal or improper conduct of the law enforcement officers.
The Christie Discretion (Unfairness)
There is also a discretion to exclude evidence where the prejudicial effect of evidence
outweighs its probative force. This discretion is relevant in a criminal trial.
See EAQ, s 130 – Rejection of evidence in criminal proceedings

R v Christie (1914) AC 545; R v Hasler [1987] 1 Qld R 239; Siddon v WA [2008] WASC 100.
The Ireland Discretion (Public Policy)
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54
The police may use tricks to gain information during their investigation, provided they do not
contravene a statute: Swaffield v R, Pavic v R (1998) 192 CLR 159, 220; Tofilau v R (2007) 238
ALR 650.
Where an accused has been enticed or ‘entrapped’ into committing an offence, this is not
QEA defence, but the discretion may come into play. Ridgeway v The Queen (1995) 69 ALJR
484 (W&W 760); Robinett v R [2000] SASC 415. ** EAC s 138
Cleland’s case – Cleland v The Queen (1982) 151 CLR 1
Where a voluntary confession to which might be fairly admitted against an accused would be
rejected in the public’s interest because of the unlawful conduct leading to the making of
the confession.
** more p 47
Tofilau v R –
Undercover police adduced confessions from the accused by making them believe that they,
in the capacity of their undercover identities had the power to influence corrupt officials in
the favour of the accused.
** more p 48
Commonwealth –
EA Cth s 136 General discretion to limit use of evidence.
The court may limit the use to be made of evidence if there is a danger that a particular
use of the evidence might:
(a) Be unfairly prejudicial to a party; or
(b) Be misleading or confusing.
3. What is the Rule in Browne & Dunn? What consequences may flow from a breach of the
rule?
If counsel proposes to contradict the evidence in chief of a witness, they are required to put
it to them in cross examination: Browne v Dunn
For example: D on trial for assault of W, will be alleging self defence. Counsel for D must put
to W, in cross examination, the suggestion that W struck the first blow.
The rule in B v D applies in civil and criminal cases, but not committal hearings: R v Birks
(1990) 19 NSWLR 677.
The rule is breached by:

- Not cross examining the witnesses at all, or not putting the counsels case that contradict
or challenges the witness; and then
- Calling evidence to contradict the witness, inviting the tribunal of fact to reject the
witness’ evidence, or drawing inferences contrary to their evidence.
Consequences of breach:
- May constitute acceptance of the witness’ E-I-C
- May entitle the other side to call rebuttal evidence: Allied Pastoral Holdings
- Recall of witness
- Denial of opportunity to call contradicting witness
- Denial of opportunity to challenge witness in closing address; and
- Abortion of trial
Benchbook number 38
Commonwealth – ss 102, 103, 106.
4. What are some of the ways that you might challenge the evidence of an expert witness?
Expert evidence is the opinion evidence of an accredited expert testifying to a matter
beyond the common knowledge of the fact-finder. It is required to assist the court to assess
evidence in its technical content: eg. Cause of death in homicide or brake failure in an
accident.
An expert’s accreditation is usually outlined in E-I-C. (Page 349)
If you wish to challenge an experts credentials, this will occur in a voir dire: R v Parenzee
[2007] SASC 143. If you are unsuccessful and the the matter proceeds, the witness is still
subject to have their credibility questioned by defence in cross examination.
This can be done in many ways: (p350)
questioning the witness on their professional exposure and experiences as they relate to
cases exactly like the one before the court.
Attempt to disprove or cast doubt on which that opinion was based: Ramsay v Watson
(1961)
Question the expert and have them qualify that their opinion is within their field of
expertise: R v Darlington and McGauley [1980] VR 353.
‘Qualified by way of experience’. Allowed in R v Fazio (1997) 69 SASR 54, Police officer with
experience in drug squad ‘ street value’ of cocaine, but Keller v The Queen [2006] NSWCCA
204 a similarly qualified officer was not allowed to interpret drug code for words used to
facilitated drug supply offences.
———-

Expert evidence is the opinion evidence of an accredited expert testifying to a matter
beyond the common knowledge of the fact-finder. It is required to assist the court to assess
evidence in its technical content: eg. Cause of death in homicide or brake failure in an
accident.
Answer 1 (preferable)
In Clark v Ryan [1960] 103 CLR 486, the court held that opinion evidence from an expert
requires four elements:
1. Recognised field, science or knowledge
2. Witness qualified as an expert (common knowledge rule) in that field
3. The opinion is outside ordinary experience
4. The facts on which the opinion is based are proven by admissible evidence
If disputed, the elements must be established on voir dire: Clarke v Ryan
** EAC, s 79 is similar but s 80 has abolished the common knowledge rule.
Recognised field, science or knowledge
The opinion must come from a recognised and organised field, science or body of
knowledge: Clark v Ryan
Witness qualified as an expert in that field
As a matter of law, the witness person must be qualified as an expert in the field: Clark v
Ryan
Evidence must be lead as to qualification, such as academic, professional or trade
qualifications: Clark v Ryan
The opinion is outside ordinary experience
The opinion must be outside the ordinary course of experience so that that the judge/jury
requires the assistance of the expert to draw correct inferences: Clark v Ryan
In Taylor v Harvey, the court heard that evidence of an expert as to a crash was inadmissible
because a person did not require the qualification to be able to understand or give the
particular evidence. Rather, it was a process or reasoning that might have been given by
someone who did not have Kahler’s formal qualifications.
The failibility of memory is unlikely to require an expert: Clark v Ryan
The facts on which the opinion is based are proven by admissible evidence
The facts the opinion are based on must be proven by admissible evidence: Clarke v Ryan
Statements made to an expert witness are admissible if they are the foundation, or part of
the foundation, of the expert opinion to which he testifies: Ramsay v Watson

Answer 2
Requirements for expert evidence to be led:
Elements / Matters to be satisfied: Clark v Ryan
1. Necessity – expert evidence has to be required for jury to come to conclusion
2. Organised branch of specialised knowledge
3. Person qualified as an expert (common knowledge rule) in that branch / area
(usually connected with #4)
4. Person does not stray from their expertise (usually connected with #3)
** EAC, s 79 is similar but s 80 has abolished the common knowledge rule.
Element 1 – Necessity: The tribunal of fact not competent through ordinary knowledge
or experience to draw the inference
 Expert’s opinion must add something to the deliberations of the tribunal of fact
o Must be particular area outside scope of realm of everyday experience such that
jury need assistance
 Examples (not exhaustive):
o Identifying drugs;
o Mechanical state of motor vehicle;
o Blood alcohol levels;
o Fingerprint
Element 2 – ‘an organised branch of science or knowledge’
 ‘….so far partakes the nature of a science to require a course of previous habit of study
to attain knowledge’
o Distinct from situation in Weal v Bottom where was his experience
o E.g: effect of car skidding vs particular truck on light bend
 Does not have to be ‘scientific’ in sense of physical science, but ‘science’ as in knowledge
 Examples:
o Medicine; surgery; poisons; psychiatry; engineering; botany; ballistics;
mechanics and operation; etc
Element 3 – Qualified in that field (most important element- question of fact).
 Specialised knowledge is knowledge outside the knowledge or experience of ordinary
persons
o Consider: academic qualifications, publications, experience, membership,
specialisation, etc
 Where expertise is disputed, determine field and/or expertise in voir dire
o In Banhelyi – Expert in accident reconstruction NOT study of photography or
images obtained from CCTV
o In Paranezee – Nuclear physicist who studied AIDS in spare time not an AIDS
transmission expert
 Distinguish ‘dabbling’ or ‘hobby study’
Element 4 – Person does not stray from experience

 Generally related to element 3, however distinguish fact where qualified but go outside
qualifications
 Case Examples:
o Paranezee – nuclear physicist who studied AIDS in spare time not an AIDS
transmission expert
o HG – High Court held psychologist on behavioural changes of a sexually
assaulted child strayed to give opinion child may have been assaulted by
biological father
o De Silva – Psychiatrists opinion sought on psychiatry but went on to give
evidence of tenets of Catholicism and Sri Lankan culture.
5. Explain the nature and admissibility of documentary evidence.
Schedule 3 QEA defines ‘document’.
Generally, a party relying on the contents of the document for any purpose other than
identifying it must adduce primary evidence of its contents (that is, the document itself):
Commissioner for Railways v Young
Rationale for original evidence rule
The rule ensures the reliability and accuracy of evidence, minimises fraud and deception,
and requires the parties to adduce the best possible evidence. This is especially important
as a jury is likely to place more weight on written documents than oral testimony.
Exceptions to the best evidence rule
Common Law: The content of documents may be proved by secondary evidence (e.g. copies
or oral evidence) in the following circumstances:
1. Mere identification
A party relying on the contents of a document for identifying it not produce the original
document as evidence: Commissioner for Railways v Young
2. Copies
All copies or facsimiles are treated the same as the original: s 116 QEA
However, a court may require a copy to be authenticated however it thinks fit: s 97 QEA
3. Production of the original would cause undue delay or expense
Under r 394 UPCR, if a fact in issue might cause unnecessary or unreasonable expense,
delay or inconvenience, the court may order that evidence be given by:
(a) A statement on oath of information and belief; or
(b) By the production of documents or entries in records (or copies thereof).
4. Document is lost or destroyed

In R v Kenilworth, the court ruled that secondary evidence will be permissible where the
judge is satisfied (on a voir dire) that the document is lost or destroyed, provided:
(a) The party has conducted a bona fide and diligent search; or
(b) The destruction was not fraudulent.
5. Production of the original is impossible
Secondary evidence may be adduced as to the contents of documents which would be
impossible to produce to the court: Owner v Bee Hive Spinning
Billboard
Traffic sign
Car registration stickers
Public registers, electoral rolls, etc (see Mortimer v McCallan)
6. Opponent’s failure to produce after notice to produce is served
Rule 227(1) UCPR allows a notice to be served on the opposing party requiring them to
produce certain documents at trial, with reasonable particularity.
Where the opposing party fails to comply with a notice to produce, the party that served
the notice to produce may instead adduce secondary evidence: Ewart v Royds.
7. Third party lawfully refuses to produce document after subpoena
Subpoenas are a process by which a person can be compelled to give evidence or
produce documents. A subpoena may be set aside where it relates to privileged
documents: Rule 415(2) UPCR
Where a stranger lawfully refuses to produce a document because of privilege, the
original party may produce secondary evidence: Bell v David
8. Owner admits contents: Slattery v Pooley
Secondary evidence may be adduced where the other party adduced where the other
party admits its contents.
Statutory Exceptions: Best evidence rule is abrogated by the following provisions:
1. Authenticated copy – a document may be proved by the production of an authenticated
copy (or part thereof0: s 97.
2. Book of accounts – a copy of a book of account is admissible: s 84(2)
3. Photocopies – all photocopies. And facsimiles of documents are admissible to the same
extent as the original document: s 116

4. General Discretion – in a civil matter, where a fact in issue is not seriously in dispute, or
strict proof of a fact in issue might cause unnecessary or unreasonable expense, delay or
inconvenience, the fact may be given in any way the court directs: s 129.
6. What is the difference between the common law concepts of similar fact and propensity
evidence? How are similar fact evidence and propensity evidence dealt with in Queensland
courts? Are there differences in how these concepts operate in Uniform Evidence Act
jurisdictions? If so, what are they?
Propensity evidence -
Evidence that a criminal accused has in the past demonstrated a ‘propensity’ to behave in
precise the same way as it is alleged they behaved on the occasion on trial has the potential
to be:
 Highly relevant to the new charge(s); but
 Highly prejudicial for the wrong reasons, in that the jury (a) may disapprove of them as a
person; or (b) reason that ‘they have done it before, so why not this time?’
The courts are obliged to balance the relevance against the prejudice.
 The leading authority is Pfennig v R (1995) 182 CLR 461, in which the High Court held
that propensity evidence may be admitted when, taken together with the other Crown
evidence, there no longer remains an ‘rational view of the evidence which is consistent
with the innocence of the accused’.
This decision was put to one side and a revised test was created in R v O’Keefe [2000] 1
Qd R 564.
O’Keefe created a two tier test to determine propensity evidence.
1. Is the propensity evidence of such caliber that there is no reasonable view of it other
than supporting an inference that the accused is guilty of the offence charged?
2. If the propensity evidence is admitted, is the evidence as a whole reasonably
capable of excluding all innocent hypotheses?
In 1998, O’Keefe was charged with setting fire to a shed attached to a boarding house,
followed by another incident at an unoccupied house. Both fires were started with
paper.
The court admitted SFE showing that in 1975, O’Keefe had lit two fires at night, one to a
shed and another to a building, both started by paper.
The O’Keefe test was overturned in R v Phillips (2006) 225 CLR 303 when the Pfennig
test was re-instated.
Phillips was charged with 8 counts of sexual assault against 6 girls.
Phillips argued that being locked in a credibility battle with 6 separate alleged victims left
him severely ‘prejudiced or embarrassed’.
Propensity evidence is admissible if its probative value is such that there is no rational
explanation for the evidence which is consistent with the accused’s innocence of the
crime charged.