Can Written Statements Be Admitted as Evidence? (WA)
If a witness to a crime is deceased or unable to give evidence at a trial, the prosecution may make an application to have their written statement admitted as evidence in certain circumstances. This article outlines the circumstances when written statements may be admitted as evidence in criminal proceedings in Western Australia.
The circumstances include:
- Where the witness is dead;
- Where the witness’s medical or mental condition is such that they are unable to give evidence or to give evidence satisfactorily, notwithstanding that they might recover at some future time;
- Where the witness is out of the state and is not able to give evidence at the proceeding by video link or an audio link, notwithstanding that the witness might return at some future time;
- Where the witness is being kept out of the way by the accused; and
- Where the parties consent and that the interests of justice do not require the presence of the witness.
In each of the above situations, a witness statement must comply with the technical requirements set out in Clause 4 of Schedule 7 of the Act, including that the statement identifies the person making it and the person signs it.
If the application to admit a witness’ statement without them giving evidence is not opposed, then the court will usually make the order. This will often occur during trials where the prosecution and defence agree to certain witness statements being read into evidence. This may include police witnesses with limited involvement or other witnesses whose evidence is not challenged by the defence and who are not required for cross-examination.
If the application is opposed by the accused, it will be listed before a judge to determine.
Is the statement admissible?
To determine whether a written statement is admissible, a court must first consider whether the witness statement complies with the technical requirements in the Act. These include the requirements that evidence be relevant, that the evidence does not contain inadmissible hearsay and that opinion evidence is not given, except by a person who qualifies as an expert or where the opinion is of a matter that falls within common knowledge.
Secondly, the court must consider whether the admission of the witness statement would be unfair to the accused. Unfairness may arise from the jury not having the opportunity to see and hear the witness give evidence and from the fact that the witness cannot be cross-examined. If the court considers that the statement’s admission would be unfair to the accused, it has a limited discretion to admit the statement into evidence.
Would the admission of the statement be unfair?
In considering the question of unfairness, the court must consider:
- Why the witness is unavailable, and particularly, whether the accused had any involvement in the unavailability of the witness – e.g. the accused caused their death or is preventing the witness from going to court;
- Whether there are any other means of challenging the evidence – e.g. obtaining medical records for the unavailable witness, asking police witnesses whether the unavailable witness has any criminal record and asking other witnesses about the witness’s character;
- Whether the accused is unable to pursue lines of cross-examination to their material advantage;
- The opportunity for the accused to give evidence about the evidence without fear of contradiction;
- What the state must prove to establish the offence, that is, the elements of the offence and whether there are other witnesses whose evidence proves certain elements and whether the only witness who could prove an element is an unavailable witness; and
- Whether any unfairness to the accused can be negated by the trial judge’s directions to the jury.
It is more likely that the written statement of an unavailable witness will not be admitted where that witness’s evidence is the only evidence of an element of the offence and where the accused identifies a line of cross-examination which they would otherwise have pursued at trial.
If, after considering the above, the court finds that there is no unfairness to the accused, the court can order that the witness statement be admitted into evidence. The court can make an order that admits an unavailable witness’s statement subject to other conditions such as not reading certain portions of the statement.
The trial judge will warn the jurors that the weight they should give to the evidence needs to be considered in light of the inability of the accused to test the credibility of the evidence under cross-examination. They will usually warn the jury that the evidence should be approached with caution and carefully scrutinised. The trial judge will direct the jury that it would be dangerous to convict the accused unless the jury finds that the evidence in the written statement is substantially supported by other evidence which implicates the accused and they are satisfied beyond a reasonable doubt as to the honesty, accuracy and reliability of the evidence.
Exclusion of parts of statement
An order allowing the admission of a written statement does not override the usual rules of evidence. Any parts of the witness statement that are hearsay, opinion evidence, or are otherwise prejudicial or inadmissible should be excised from the admitted statement.
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