Evidence A. Weeks 1 & 2 Introduction to the Law of Evidence and Relevance

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1 1 Evidence A Weeks 1 & 2 Introduction to the Law of Evidence and Relevance INTRODUCTION The law of evidence consists of the rules and principles that govern the proof of the facts in issue at a trial. The facts in issue are those which the plaintiff or prosecutor, and the defendant or accused, must prove in order to be successful. The first general rule of the law of evidence is that to be admissible evidence must be directly or indirectly relevant to a fact in issue, that is, it must render the existence of that fact more or less probable. Evidence is directly relevant to a fact in issue when the evidence itself bears on the probable value of evidence said to be directly relevant to a fact in issue. OBJECTIVES OF THE RULES OF EVIDENCE The rules of evidence are made more complex by the fact that this area of law does not have a single coherent objective. There are a number of different, often inconsistent, goals. Objectives include: o to ascertain the truth o the disciplinary principle which leads to the exclusion of certain forms of wrongly obtained evidence. o the protective principle which requires that accused persons should be protected from the possible prejudice of juries. RANGE OF THE LAW OF EVIDENCE The Law Reform Commission of WA in its 1999 review of the Criminal and Civil Justice System in WA said that the law of evidence is best described as a collection (even a mish-mash) of principles, rules and discretions, which have developed over a number of years and in the light of different rationales. There are a variety of rules. For example, some rules: o concern procedural matters or the presentation of the evidence; o concern the witnesses themselves; o concern the admissibility of particular types of evidence; o govern the evaluation of the evidence received.

2 2 NATURE OF EVIDENCE The term evidence denotes the materials which courts will consider in deciding disputed issues of fact. The law of evidence, therefore, refers collectively to the rules governing the materials that courts will consider in deciding disputed factual issues. MEANS OF PROOF oprinciple of relevance For evidence to be admissible it must be directly, or indirectly, relevant to a fact in issue. oexclusion Rules Evidence, though relevant, may be inadmissible because of the operation of an exclusionary rule of evidence. oexceptions to exclusionary rules The rules that exclude evidence may have exceptions that permit the admissibility of the evidence. odiscretion to exclude or admit evidence Common law and statutory discretions oweight The concepts of the admissibility and relevance are to be distinguished from the concept of the weight of the evidence. The weight of the evidence refers to its cogency or degree of persuasiveness of the evidence. THE LAW OF EVIDENCE IN WESTERN AUSTRALIA The law of evidence in Western Australia is derived from the following sources: o The common law o The Evidence Act 1906 (WA) note ss3, 4, 5 o The Evidence Act 1995 (Cth) note ss4, 5, 190, dictionary o Other relevant legislation e.g. Criminal Investigation Act 2006 (WA), Bail Act 1982 (WA), Criminal Procedure Act 2004 (WA), Magistrates Court Act 2004 (WA). o See also the various rules of Court which govern procedure. Note - Not all bodies are bound by the laws of evidence. e.g. Tribunals. o The Evidence Act 1995 (Cth) came into force in April o Almost identical Acts exist in federal courts (the Commonwealth Evidence Act), ACT, NSW, Tasmania and Victoria, collectively known as the uniform Evidence Acts. o The Uniform Evidence Acts are designed as a Code of Evidence, completely replacing the Common Law.

3 3 o SA and WA have not enacted legislation adopting the uniform evidence law. Thus, WA predominantly follows the common law. THE FUNCTIONS OF JUDGE AND JURY othe general rule is that questions of law are determined by judges and questions of fact are determined by the jury. oquestions as to the admissibility of evidence are questions of law and are therefore for the judge to decide. othe judge exercises considerable influence over the jury in its determination of facts in a number of ways. e.g. withdrawing issues. othe judge has a duty to instruct the jury on all matters of law, and also to assist in its consideration of facts. othe judge will review the evidence and is entitled to comment on it to the jury. JUDICIAL NOTICE AND FORMAL ADMISSIONS The general rule is that the facts in issue or relevant to an issue in dispute must be proved by admissible evidence. There are two main exceptions to this rule the first relates to facts of which judicial notice is taken; the second relates to facts that are formally admitted or agreed between the parties. JUDICIAL NOTICE othe guiding principle of the doctrine of judicial notice is that: o whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information and investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. -> Holland v Jones (1917) 23 CLR 149,153 (Isaacs J). -> See also: Evidence Act 1995 (Cth), Part 4.2 [esp s144]. othe following are examples of facts sufficiently notorious that judicial notice has been taken of them without inquiry: That HIV is a major health problem The age at which children start and finish school etc. oa court may take judicial notice of the general geographical features of the locality in which it sits. It may not take judicial notice of particular features of a section of the locality that may not be generally well known -> Kent v Scattini [1961] WAR 74. owhere a fact is not contentious, notice may be taken of such fact notwithstanding that some inquiry into the existence of the fact is necessary. odictionaries, referenced works etc may be consulted by judges in determining whether to take judicial notice of particular facts.

4 4 oa court will take judicial notice of the nature of a scientific or technical instrument, such as weighing scales (Giles v Dodds [1947] VLR 465) or a speedometer (Thomson v Kovacs [1959] VR 229) ojudicial notice generally may NOT be taken of regulations, by laws and other forms of sub-regulation. ojudicial notice may, however, be taken of such regulations if the Act in pursuance of which they were made provides that they are to have effect as if contained in that act (Brebner v Bruce (1950) 82 CLR 161) onumerous states (including WA) provide that judicial notice shall be taken of the signatures of various persons attached to official docs (Evidence Act 1906 (WA) ss 58,59.) FORMAL ADMISSIONS Formal admissions are those made by the parties for the purpose of dispensing with proof at the trial. Civil cases Formal admissions may be made through, for example, the pleadings, notices to admit, and interrogatories. Criminal cases oevidence Act 1906 (WA), s32. oevidence Act 1995 (Cth), s184. oan accused is of course not required to make any admissions under these provisions. In some cases however, it may be proper for the court to encourage the making of certain formal admissions. THE VOIR DIRE owhere the admissibility if an item of evidence is depended on a disputed fact, the judge determines the existence of that fact on a voir dire. oexamples of matters to be determined on a voir dire include; whether a confession was made voluntarily, whether a witness is an expert, whether a child is mature enough to give evidence. oon a voir dire, both parties are entitled to call evidence and to cross-examine witnesses called by the other side. othe party wishing to have evidence admitted need only satisfy the court of the facts necessary to justify its admission on the balance of probabilities. Voir Dire and the Jury owith a voir dire, a jury should certainly be absent if evidence which the judge has to consider on the voir dire is likely to be prejudicial to the accused oin relation to confessions and admissions in criminal cases, the voir dire will always be held in absence of the jury. oif the jury is absent during the voir dire, and the court decides to admit the evidence, of necessity the evidence will have to be given again.

5 5 DISCRETION TO EXCLUDE oin criminal cases the trial judge has a general discretion to exclude legally admissible evidence (see e.g. Ibrahim v The King [1914] AC 599) othis discretion arises in two types of situation; 1) If the evidence s reception would be unfair to the accused in that it might place the accused at risk of being improperly convicted. (This discretion is two-fold in nature). a) Evidence which is unreliable b) If the evidence is prejudicial, that is, evidence which may be misused by a jury or may give rise to a bias against the accused. 2) If the evidence was obtained improperly or unlawfully. othere may be overlap between these two types of discretion. odupas v The Queen (2012) 218 A Crim R 507. or v XY [2013] NSWCCA 121. oaytugrul v The Queen (2012) 86 ALJR 474. APPEALS oa court may dismiss an appeal if it considers that no substantial miscarriage of justice occurred. oan accused will be entitled to have his or her conviction quashed if evidence against the accused was wrongfully admitted or if evidence in favour of the accused was excluded, an erroneous decision in law was given, or a direction in law required to be given to the judge was not given. oif the appeal is allowed, an acquittal may be entered or a new trial may be conducted. othe court may hear new evidence on appeal, and the court will quash the conviction if the new evidence raises doubt as to the guilt. othe court will not quash a conviction where the new evidence is not fresh evidence and does not satisfy the court of the accused s innocence or doubt about their guilt. ofresh evidence is evidence which was not available to the appellant at the time of the trial, and which could not have become available to the appellant by the exercise of reasonable diligence in the preparation of his or her case (Orchard v Orchard owhere the evidence is fresh evidence the verdict will not be allowed to stand and a new trial will be ordered if the court considers that the evidence was capable of being accepted by a jury, and that it would likely produce a different verdict if the jury believed it -> Ratten v The Queen (1974) 131 CLR 510 at 520 per Barwick CJ RELEVANCE To be admissible, an item of evidence must be directly or indirectly relevant to a fact in issue. Definition

6 6 o Any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other. o the most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence? othe fact that the evidence possesses some conceivable relevance is not sufficient for admissibility; It must possess sufficient relevance to justify consideration by the court othe State of Western Australia v Newton [2014] WADC 6. Under the acts, evidence possessing some relevance may nonetheless be rejected if that relevance is outweighed by the danger that it might be misleading or confusing or cause or result in an undue waste of time. THE EVIDENCE ACT 1995 (CTH), ss 55, 56, 57. oas is always the case with any issue about the reception of evidence the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. ofurther, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. oirrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. Smith v The Queen (2001) 206 CLR 650. othe issue in this case was whether the appellant was the person depicted in some of the security photographs taken during a bank robbery. The only evidence given against the appellant (apart from bank photographs) was that given by two police officers who identified him based on earlier encounters. The court questioned whether the police evidence could rationally affect the jury s assessment. The HC concluded that because the police identification was based on material no different to the material available from the jury, the evidence could not rationally affect the jury s assessment. o In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. There will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies the question of relevance must be answered by applying Pt 3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.

7 7 THE OBJECTIVE OF THE RELEVANCE REQUIREMENT AND THE DETERMINATION OF WHAT FACTS ARE AT ISSUE IN A PROCEEDING othe obvious objective sought to be achieved by the requirement of relevance is to ensure that only matters having a significant bearing on the facts in dispute are presented to the fact finder. If it were otherwise, then proceedings would be protracted unnecessarily and valuable judicial and quasi-judicial resources would be wasted. Moreover the introduction of extraneous evidence always poses the risk that the fact finder may focus too much on it and too little on other highly probative evidence in the case; this is particularly true in situations where the extraneous evidence is so inflammatory regarding a litigant that the potential for miscarriage of justice is palpable o The determination of relevance hinges on whether the evidence being offered tends to prove or disprove some fact or facts at issue in the proceeding evidence that does not have a tendency to prove or disprove some fact or facts at issue will be excluded as irrelevant. MAIN FACTS The main facts in issue are all those facts which the plaintiff (or applicant or petitioner) in a civil action, or the prosecutor in criminal proceedings, must prove in order to succeed, together with any further facts that the defendant (or respondent) or accused must prove in order to establish a defence. The main facts in issue in a particular case can only be ascertained by reference to the substantive law and the pleadings. SUBORDINATE OR COLLATERAL FACTS osubordinate or collateral facts which may be in issue are (a) those affecting the credibility of a witness, and (b) those affecting the admissibility of certain items of evidence; they may be in issue in a particular case on account of the law of evidence itself, and not on account of the substantive law or pleadings. othe facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The

8 8 general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. -> Goldsmith v Sandilands (2002) 190 ALR 370. DIRECT AND INDIRECT RELEVANCE Attorney-General v Hitchcock (1847) 154 ER 38. The laws of evidence on this subject, as to what ought and what ought not be received, must be considered as founded on a sort of comparative consideration of the time to be occupied in examinations of this nature, and the time which it is practicable to bestow upon them. If we lived for a thousand years instead of about sixty or seventy, and every case were of sufficient importance, it might be possible, and perhaps proper, to raise every possible inquiry as to the truth of the statements made. But I do not see how that could be; in fact, mankind finds it to be impossible. Therefore some line must be drawn.. Hollingham v Head (1858) 140 ER oan action for goods sold and delivered. The question was whether the sale was absolute or subject to a condition. The defendant sought to call evidence to prove that the plaintiff had made other contracts with other persons subject to the condition suggested. The court of common pleas disallowed the evidence. oit is not easy in all cases to draw the line, and to define with accuracy where probability ceases and speculation begins: but we are bound to lay down the rule to the best of our ability. No doubt, the rule as to confining the evidence to that which is relevant and pertinent to the issue, is one of great importance, not only as regards the particular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point they have to decide... anything which is neither directly or indirectly relevant to those matters ought at once be put aside... as tending to distract its attention and to waste its time. o Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion? To admit such speculative evidence would I think be fraught with great danger. R v Buchanan [1966] VR 9. oaccused was charged with manslaughter arising from a car accident. He admitted he had consumed a large amount of alcohol. Evidence was given by 2 witnesses (Mr and Mrs Lewis), who said that minutes prior to the accident, they saw the car being driven by the accused at high speed on the wrong side of the road. othe accused tried to argue that what the witnesses saw was a separate incident that did not connect his driving at that time with the driving at the time of the accident. othe court held that the evidence was admissible because it was relevant to show how the accused s driving had been affected by alcohol consumption.

9 9 o In my view, once there was evidence, and there was evidence by way of admissions from him, that at the relevant time he was affected by liquor he had taken, then the incident to which the Lewises testified was relevant to show in what way that liquor was affecting him in his management of the car, and, in my opinion, the incident to which the Lewises referred was not so isolated, either in distance or time, as to deprive their evidence of the relevance to which I have referred. if the jury accepted the evidence, that the applicant was affected by alcoholic liquor, and the earlier incident could be used by the jury as an indication that the applicant was affected in his judgment and his management and control of the car. R v Stephenson [1976] VR 376. oaccused was convicted on three counts of culpable driving causing death one count of GBH by driving a motor vehicle negligently. Evidence was unable to establish which of the people in the other car was driving at the time of the collision. The sobriety of the driver was relevant, but there was no way of determining who was driving. The appeal was dismissed. oalthough logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant. Festa v The Queen (2001) 208 CLR 593. if evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. Week 3 Circumstantial Evidence and Burden of Proof and Standard of Proof DIRECT EVIDENCE AND CIRCUMSTANCIAL EVIDENCE o Direct evidence is evidence which, if accepted by the fact finder, is itself dispositive of a disputed issue of fact. Suppose, for example, that the issue is whether Y shot Z. If X reports from the witness box that he saw Y shoot Z, and the fact finder believes X's testimony, it is apparent that this effectively disposes of the question whether Y shot Z.

10 1 0 o Circumstantial evidence is evidence which, even if accepted as true by the fact finder, is not in itself sufficient to resolve a disputed issue of fact. Rather, it is evidence which, if accepted as true, requires the fact finder to draw one or more inferences in order to resolve the factual issue to which it is directed. o Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. Shepherd v The Queen (1990) 170 CLR 573. MOTIVE AS CIRCUMSTANTIAL EVIDENCE o Facts which supply a motive for a particular act or facts which explain the relationship between the participants may be admitted into evidence as circumstantial evidence. Plomp v The Queen (1963) 110 CLR 234. o Motive is a common type of circumstantial evidence. Plomp v The Queen (1963) 110 CLR 234. HELD: motive was circumstantial evidence. FACTS: There was a man with a mistress, he didn t tell the mistress he was married, he had planned to marry his mistress and then he and his wife went swimming at the beach, the wife allegedly drowned. He didn t tell the mistress that the wife drowned, and then the husband was charged with murdering the wife. The motive was that he wanted to be with the mistress. that circumstantial evidence was used. evidence of motive cannot be used to prove guilt unless there is evidence that is sufficient to establish something was actually done to prove that he murdered his wife Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. Evidence of motive necessarily goes to prove the fact of homicide by the accused inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not. So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, 'is commonly relied upon as a circumstance tending in favour of a person accused of a crime.' De Gruchy v The Queen (2002) 211 CLR 85. RELATIONSHIP EVIDENCE it is not only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible; if the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the 2

11 1 1 explanations of the occurrence, then it is relevant and admissible. It is, however, not all evidence of the relationship of the parties that is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Wilson v The Queen (1970) 123 CLR 334. Wilson v The Queen (1970) 123 CLR 334. There was a man who was fighting with his wife on a farm, neighbours heard them fighting. a gun was discharged and killed the wife. and the issue was did the husband murder the wife, or was it (as the accused alleged) that a dog jumped on the gun. It was found that the eyewitnesses hearing the screams established a relationship of conflict between the two, and it was useful circumstantial evidence. TRIAL JUDGE DIRECTION Chamberlain v The Queen (No 2) (1984) 153 CLR 521. The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. [T]he prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Shepherd v The Queen (1990) 170 CLR 573. CIRCUMSTANTIAL EVIDENCE Is This Evidence Direct or Circumstantial? Criminal Code (WA) 444. Criminal damage (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable (a) if the property is destroyed or damaged by fire, to life imprisonment; or

12 1 2 (b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years. Alternative offence: s Summary conviction penalty: for an offence where (a) the property is not destroyed or damaged by fire; and (b) the amount of the injury done does not exceed $25 000, imprisonment for 3 years and a fine of $ (2) Property that is capable of being destroyed or damaged by fire includes vegetation. Evidence examples: E.g. Fact: The accused is on trial for arson for starting fires south of the river. 1. A witness saw the accused running from the room immediately after the room was on fire. -> This is circumstantial (it is not direct). Not definitive, he could have been running away from the fire to safety. 2. A witness saw the accused lighting the room on fire. -> Circumstancial evidence. 3. Documents were found in the accused s office on how to set a fire and how to make it look like an accident. -> Circumstantial Evidence 4. Statements by the accused that he thinks that the homes south of the river are unattractive. -> Irrelevant, not circumstancial. DISCRETION TO EXCLUDE EVIDENCE Discretion to Exclude Relevant Evidence in Criminal proceedings R v Christie [1914] AC 545. the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused. Driscoll v The Queen (1977) 137 CLR 517. Minhaj v The Queen [2000] WASCA 52. Evidence Act 1995 (Cth), ss135, 136, 137. Evidence Act 1995 (Cth) Evidence Act 1995 (Cth), ss55, 56, 57, 58 relevance. Evidence Act 1995 (Cth), Part 3.11 exercise of discretion.