How Judicial Warnings Under the Evidence Act Operate

The Function of Judicial Warnings

Judicial warnings serve to alert fact-finders to categories of evidence that require careful scrutiny. In jury trials, these warnings are given orally to the jury. In judge-alone and Local Court proceedings, the warning operates as a self-direction that the judicial officer must apply.

The Evidence Act 1995 (NSW) codifies several mandatory and discretionary warnings. Understanding when these warnings apply—and their practical effect on fact-finding—is essential for defence practitioners.

Section 165: Unreliable Evidence Warning

When Section 165 Applies

Section 165(1) provides that a court may warn the fact-finder that certain evidence may be unreliable and explain why. The section specifically identifies categories including:

• Evidence of a kind that may be unreliable
• Evidence given by a witness who might have an interest in the outcome
• Evidence of a previous representation (hearsay)
• Oral evidence of official questioning (admissions to police)

Mandatory Warning on Request

Section 165(2) creates a mandatory obligation: if a party requests a warning, the court must give it. This is significant because defence counsel can compel the warning even where the court might otherwise decline.

Practical Effect in Summary Proceedings

In Local Court proceedings without a jury, section 165 operates as a self-direction. Magistrates are taken to be aware of the warning requirements, but defence submissions should explicitly invoke the section where relevant evidence is tendered.

Section 165A: Warning for Uncorroborated Evidence

Section 165A applies specifically to proceedings for serious sexual offences. It provides that a court must not warn the jury, and must not suggest to the jury, that it would be unsafe to convict on uncorroborated evidence of the complainant.

This section reversed the common law position and reflects the legislative judgment that complainants in sexual offence matters should not be subjected to a generalised warning about uncorroborated evidence.

Section 165B: Delay Warnings

Section 165B addresses warnings about delay in complaint. The provision applies to "prescribed sexual offences" and specifies:

• The court must not warn that delay affects credibility unless evidence supports this
• If warning is given, the court must also inform that delay does not necessarily indicate falsity
• The court must inform that there may be good reasons for delay

This provision constrains traditional defence approaches to delayed complaint and requires practitioners to focus on case-specific rather than generalised submissions.

Murray Directions

Origin and Application

A Murray direction derives from Murray v The Queen (1987) 11 NSWLR 12. It concerns the danger of honest but mistaken identification evidence. The direction warns that apparently credible and honest witnesses may be mistaken in their identification.

When Murray Directions Are Required

A Murray direction should be given where:

• The case depends substantially on visual identification evidence
• The identification is disputed
• The circumstances of observation were less than optimal

Content of the Direction

The direction must address:

1. The danger that an honest and convincing witness may be mistaken
2. The specific circumstances affecting the reliability of the identification
3. The need for the prosecution to exclude reasonable doubt about identity

Longman Warnings

A Longman warning addresses the forensic disadvantage to an accused caused by delay between alleged events and complaint. Following Longman v The Queen (1989) 168 CLR 79, courts must warn of the danger of convicting on uncorroborated evidence where significant delay has occurred.

Note that section 165B has modified the application of Longman in sexual offence cases, requiring a more nuanced direction that acknowledges reasons for delay.

Practical Application for Defence Practitioners

CORE Defence Lawyers applies a systematic approach to judicial warnings:

1. Identify Applicable Warnings

Review the prosecution evidence to identify categories that attract warnings—identification, hearsay, admissions, interested witnesses, or uncorroborated complainant evidence.

2. Request Mandatory Warnings

Where section 165(2) applies, formally request the warning. The request should be made on the record to preserve appellate rights.

3. Frame Submissions Around Warning Requirements

Closing submissions should incorporate the substance of applicable warnings, reminding the court of the need for scrutiny and the specific factors affecting reliability.

4. In Summary Proceedings

In Local Court matters, explicitly reference the applicable warning provisions and submit that the magistrate should apply appropriate caution consistent with the legislative scheme.