David Caruso

Differential or deferential to media? The effect of prejudicial publicity on judge or jury:

Australian jurisdictions have increasingly moved to facilitate trial by judge alone in cases which are the subject of significant prejudicial publicity. These moves have been predicated upon the assumption that the ordering of a trial by judge alone is an effective means of reducing the risk of prejudice in cases of this kind. This article has two objects. First, it investigates the principles underpinning the availability of trial by judge alone in cases of serious prejudicial publicity, and the different legislative frameworks that have evolved in different Australian jurisdictions. Second, it critiques these principles by analysis of a line of psycho-legal research which examines the comparative abilities of judges and jurors to disregard prejudicial publicity. The article interrogates the reformist assumption that a trial by judge alone will be fairer to an accused who is the subject of significant prejudicial publicity.

Return of the Wrongly Convicted: The Test for Post-Conviction Executive References in Australia

The power of the executive to refer cases involving criminal conviction back to an appellate court is a mechanism for guarding against miscarriages of justice and regulating the inherent fallibility of the criminal justice system. These cases typically come before the executive by way of a petition that claims a person has been wrongfully convicted. In Australia, however, there are few guidelines and little information as to the criteria and standards by which the executive decides whether to refer a petitioned case. The test the petitioner must meet is not clear. This chapter therefore has two purposes. The first is to examine the types of petitions most likely to be referred to the appellate court by the executive. These cases are shown to fall into particular categories. The second is to argue that, from these categories, inferences may be drawn about the test the executive uses in deciding whether to refer a petition. These inferences follow from the common principles and links between the cases in each category. The chapter identifies the test the petition should meet to have optimal chance of referral.

Is an oral-evidence based criminal trial possible in China?

Witness testimony is a fundamental component of any modern, adversarial judicial system. The criminal trial is particularly reliant on the testimony and cross-examination of witnesses to furnish to the judge and/or jury the relevant facts of the case. Chinese law and regulation, in particular the Chinese Criminal Procedural Law of 2012, stipulates that witnesses have a general responsibility to testify and establishes a series of supporting measures to facilitate witnesses testifying at trial. However, the appearance rate of witnesses to orally testify at criminal trials in China is and has long been extremely low. In keeping with common and civil law pre-trial preparation, it is common in China for witnesses to provide written statements at police stations or to procurators prior to trial. The difference is that these written statements often form the principal, and sole, evidence of the prosecution case at trial without appearance, examination or contradiction of the source witness. Chinese judges decide guilt on the written witness statements which are made pre-trial and at varying times prior to the trial. We briefly examine the detriments of this non-oral scrutiny of evidence. We examine the Chinese cultural adherence to a written criminal trial, despite provisions for an oral examination in the Chinese Criminal Procedural Law, and explain nine reasons why witnesses do not appear at trial. Our reasons are based on empirical study conducted in ten pilot programmes across District or Intermediate Courts in mainland China. We argue that our review of the need for an oral-based scrutiny of procurator-led evidence in criminal trials in China is indicative and instructive of the need for China to continue its current focus on considering and adapting common and civil law-based methods of judicial scrutiny and oversight into its criminal justice system.

Public policy and private illegality in the pursuit of evidence

The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.

The basis of the 'basis rule': The role of the basis rule in the admissibility of expert opinion

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.