MLL334 Evidence LAW EXAM NOTES James Moore

Transcription

1 MLL334 Evidence LAW EXAM NOTES James Mre

2 SUMMARY UEA test f admissibility f evidence = 1. Is the witness cmpetent? 2. Is the evidence relevant? 3. Is the evidence excluded by applicatin f exclusinary rule r privilege? 4. Is the evidence excluded by peratin f a discretin? Majr cnsideratins: Is it a criminal r civil prceeding? Getting evidence admitted 1. Is it relevant? 2. Des an exclusinary rule apply? 3.10 t 3.2 in Evidence Act (credibility f character, privileges) 3. Will the judge apply judicial discretins? (Judge decides if evidence is t be excluded. 4. Is it admissible?

3 Table f Cntents (1) Templates fr answers n each tpic Tpic 1 & 2 Intrductin (Nature f Evidence Law and the Unifrm Law) Objectives f evidence law (Truth, Discipline & Prtectin) Other bjectives f evidence law Backgrund t the Unifrm Law/Act Vir Dire (S 189(2)) Burden and Standard f Prf Types f Evidence Fact in Issue Direct and circumstantial evidence S 144 matters f cmmn knwledge Tpic 3 Verbal Evidence (Witnesses Cmpetence, Cmpellability and Evidence in Chief and Crss Examinatin) Cmpetence (s12 presumptin & s13) Cmpellability f a witness (s12 presumptin) Minr Exceptins t cmpellability (reduced capacity, certain plitical members, judges and jurrs) Majr Exceptins Family members f the accused S 18 The accused S 17 right t silence Cmment n failure t give evidence S 20 Other relevant Sectins Swrn evidence f witnesses t be n ath r affirmatin S 21 Interpreters t act n ath r affirmatin S 22 Chice f ath r affirmatin S 23 Requirements fr aths s 24 Alternative ath s 24A Prcedures (examinatin in chief, crss-examinatin and re-examinatin) Examinatin in Chief Prhibitin against leading questins: s 37 Vulnerable witnesses Witness referring t dcuments t refresh memry: s 32 (reviving memry) Leave Plice fficer referring t dcuments: s 33 Limitatins n refreshing memry Unfavurable witnesses Crss-Examinatin Leading questins: s 42 Limitatin n crss-examinatin Imprper questins: s 41 Crss-examinatin f prir incnsistent statement: s 43 Re-examinatin Re-pening Cases Tpic 4 Dcumentary Evidence and Other Evidence Dcumentary Evidence What is a dcument (Dictinary f the Act (s 3) Define dcumentary evidence must d s in cnjunctin w s 47(1) Labels f identifying dcuments Prf f the cntents f the dcuments s 48(1) (a)-(f) the ways in which they may be adduced.

4 Prf by admissin with respect t cntents f dcument: s 48(1)(a) Cpies r reprductins f dcument: s 48(1)(b) Transcripts r sund recrdings and cded material: s 48(1)(c) Dcuments prduced by cmputers r ther devices: s 48(1)(d) Business recrds: s 48(1)(e) Public dcuments: s 48(1)(f) Safeguards Where the riginal dcuments are nt available: s 48(4) Define unavailable Vluminus and cmplex dcuments: s 50(1) Authenticatin f dcuments Other Evidence Definitin f ther evidence Views (in the Act) demnstratins, experiments and inspectins Experiments made ut f curt nt in presence f judge r jury Experiments in jury rm Physical evidence Tpic 5 Relevance S 56: relevant evidence t be admissible Relevance and Admissibility/exclusinary rules Relevance definitin S 55: Relevant evidence (test) Lk at s 55 alngside judicial discretin in s 135 R v Stephensn 1976 pre evidence act nt all evidence which is lgically relevant is legally admissible Further Cases Inferences as t relevance: s 58 Prvisinal Relevance: s 57 Cases t assist in understanding hw the Curt determines relevance Tpic 6 Hearsay Summary & Hearsay Test The rule f hearsay Criticisms f the hearsay rule S 59 Elements (1A & 1B) + (2) Difference between Hearsay and Nn-Hearsay Representatins with multiple relevance Implied Hearsay Objective test f intentin Express Hearsay Intentin requirement Evidence is hearsay if: Exceptins t the rule against hearsay (1) Evidence that is relevant fr a nn-hearsay purpse: s 60 (2) First hand hearsay exceptins: s 63 66A (3) Mre remte frms f hearsay (secnd hand) Tpic 7 Opinin Evidence The Opinin Rule: s 76 (pinin evidence is nt admissible) Ratinale fr this rule Cases Exceptins Relevant therwise than as pinin evidence: s 77 Lay witness pinins: s 78 Expert witness pinins: s 79

5 Tpic 8 Admissins What are admissins? Dictinary definitin Exceptins: s 81 Admissins are an exceptin t the hearsay and pinin rules Exclusin f certain admissins Evidence f admissins that is nt first-hand (sectin 82) Use f admissins against third parties (sectin 83) Admissins influenced by vilence and certain ther cnduct (sectin 84) Unreliable admissins f an accused (sectin 85) Recrds f ral questining f an accused (sectin 86) Adversely affecting the truth f admissin Evidence f silence & inferences drawn frm it Discretinary exclusins f admissins: s 90 (the unfairness discretin) Tpic 9 Tendency and Cincidence Evidence (Similar Fact Evidence) Similar fact evidence Act divides S.F.E int tw types tendency & cincidence Cmmn law The Unifrm Evidence Act Tests fr admissibility histry and verview f current tests that have been used Tendency rule: s 97 Cincidence rule: s 98 Significant prbative value Striking similarity test Summary f hw curts factr relatinship between event r cnduct t assess whether evidence has significant prbative value as tendency/cincidence evidence. Cnccted r Cntaminated Evidence and Significant Prbative Value Criminal cases tendency and cincidence Evaluatin f Dangers Assciated with Similar Fact Evidence (nne f these are genuine risks) The Imprtance f Similar Fact Evidence Cnclusin and refrm suggestins Relatinship evidence Res gestae dctrine Summary Tpic 10 Credibility and Character Evidence Credibility evidence is prima facie inadmissible Part 3.7 and 2.8 f the Act gvern Credibility and Character Evidence General Rule Credibility evidence is nt admissible: s102 Credibility defined Exceptins Part 3.8 f the Act Character Evidence Gd character evidence adduced by accused: s 110 Rule in R v Skaf: subjective intent t put their gd character in evidence, which is mre than merely deny guilt. Exceptins cnt. Credibility evidence given by experts n credibility: s 108C

6 Tpic 13 Privileges Cmmn law privileges and s 131A (which extends client legal privilege t pre-trial curt prceedings and prcedures) Privilege claims (s 132 and s 134 rules) Client Legal Privilege Ratinale Scpe f client legal privilege S 118 Legal advice S 119 Litigatin S 117 Definitins which assist with s 118/19 elements S 120 unrepresented parties Original and cpies f privileged dcuments Cnsideratins fr the test f whether cvered by client legal privilege Exceptins: Lss f client legal privilege S 121 Lss f c.l. privilege generally S 122 Client can waive the privilege S 123 Accused if required by defendant in a criminal prceeding S 124 Jint clients S 125 Miscnduct / cmmissin f a crime S 126 Related cmmunicatins and dcuments (if privilege lst due t S 121-5) S 127 Religius cnfessins S 128 Privilege against self-incriminatin Ratinale 3 ptins if the witness s bjectin is fund t be based n reasnable grunds Scpe f this privilege S 128 Certificates S 187 Crpratins S 130 Matters f State Ratinale & Scpe S 133 Curt Inspectins S 131 Settlement Negtiatins Ratinale & Scpe Exceptins Other Privileges S 126K Jurnalist privilege relating t identity f infrmant S 127 Religius cnfessins (fr members f the clergy) as abve ^ S 129 Judicial reasns privilege Tpic 11 - Discretins General (Part 3.11 f Unifrm Evidence Act) S 192 S 135 discretin (civil & criminal prceedings) Unfair prejudice (relates t s 137 als) S 136 may limit discretin (Civil & criminal prceedings) S 136 and S 60 Exceptin t the hearsay rule S 137 Mandatry Exclusin Unfairly prejudicial S 138 Exclusin f imprperly and illegally btained evidence Discretinary exclusin Warnings Part 4.5 f Unifrm Evidence Act S 165(1)(d) a warning f pssible unreliability f evidence ALRC s descriptins f judicial discretins

7 TOPIC 3 VERBAL EVIDENCE; WITNESSES COMPETENCE, COMPELLABILITY AND EVIDENCE IN CHIEF AND CROSS EXAMINATION OUTLINE COMPETENCE AND COMPELLABILITY OF WITNESSES Cmpetence f Witnesses Nte: If yu are cmpetent, yu are cmpellable. S13 presumptin is f COMPETENCE. S 13 Cmpetence-lack f capacity (examines when a persn is NOT cmpetent) RULE: if the persn des nt have the capacity t understand a questin abut the fact; the persn des nt have the capacity t give an answer that can be understd t a questin abut the fact- fr any reasn (including a mental, intellectual r physical disability)-a persn is nt cmpetent t give evidence: s 13 Cmpellability f a Witness RULE: As per, S12 all cmpetent witnesses are cmpellable, hwever there are several minr and ne majr exceptin. The minr exceptins apply t ALL cases (civil r criminal) whereas, the majr exceptins apply slely t criminal cases. Minr exceptins t cmpellability are (rarely arise) Majr Exceptins Only APPLY t CRIMINAL PROCEEDINGS S18 Family members f the accused S17 The accused (right t silence) RULE: The accused r c accused cannt be cmpelled t give evidence in criminal prceedings; S 20. Cmment n failure t give evidence S 21. Swrn evidence f witnesses t be n ath r affirmatin S 22. Interpreters t act n ath r affirmatin S 23. Chice f ath r affirmatin S 24. Requirements fr aths S 24A. Alternative ath Cntrl n the rder f prceedings Calling witnesses EXAMINATION IN CHIEF: These are friendly questins Prhibitin against leading questins: S37. A leading questin is Defined in Part 1 f the Dictinary A) As a questin that directly r indirectly suggests a particular answer t the questin r B) Assumes the existence f a fact the existence f which is in dispute in the prceeding and as t the existence f which the witness has nt given evidence befre the questin is asked. N prhibitin against leading questins in Civil prceedings regarding investigatins, reprts r inspectins made by peple wh were perfrming fficial public duties at the time: s 37(2) Vulnerable witnesses Witnesses referring t dcuments t refresh memry: S32 - Reviving memry S32 this may nly ccur with leave f the curt. Leave will generally nt be given unless: Witness has cmpletely exhausted their memry Witness cannt recall the event withut using the dcument Dcument was made when events were fresh in the memry f the witness Dcument was accurate when made: s 32(2)

8 S 32. S 33. S 34. Attempts t revive memry in curt Evidence given by plice fficers Attempts t revive memry ut f curt Applicatin f leave t refer t dcument: S 192. Leave, permissin r directin may be given n terms (applies t all matters where leave is required) Befre leave can be granted t a witness t make reference t a dcument t refresh memry, the curt has t have regard t the matters set ut in s 192: Stanevski v R (2001). Lk at matters t be regarded by curt Unfavurable witnesses S38 allws a party t crss-examine their wn witness where the witness evidence is unfavurable. Nte: Again, the curt must have regard in granting such leave, must have regard t the matters in s 192 (see abve). What is an unfavurable witness? Unfavurable has been interpreted bradly We need mre than neutral evidence. Adam v The Queen 2001 HCA 57, fr evidence t be characterised as unfavurable, it must have an unhelpful quality abut it, as ppsed t a neutral quality. CROSS- EXAMINATION Leading questins: s 42 Generally leading questins are permitted, pursuant t S42. Curt can disallw them, hwever the curt will have regard t; S42(2)- In deciding whether t disallw leading questins the curt will have regard t: Whether r nt the evidence is unfavurable t the party that called that witness. Whether that witness has interest that is cnsistent with crss-examining the party. Witness is sympathetic t crss-examining the party. Where there is a particularly vulnerability. The ppsing cunsel has a duty t bject, but als the judge has respnsibility independently f bjectins t prevent misbehaviur in questining: Libke v R Limitatin n Crss Examinatin Imprper questins: s 41: S41 sets ut the imprper questins that will be disallwed. The curt MUST disallw a questin put t a witness in crss examinatin, r infrm witnesses that they need nt answer the questin if the curt is f the pinin that the questin: a. misleading r cnfusing, r b. unduly annying, harassing, intimidating, ffensive, ppressive, humiliating r repetitive, r c. is put t the witness in a manner r tne that is belittling, insulting r therwise inapprpriate, r d. has n basis ther than a stertype: s 41 (3) In Victria, there is a judicial discretin t allw imprper questins. May disallw. Imprper questins put t vulnerable witnesses (children, r peple with cgnitive impairment r intellectual disability) must be disallwed; n discretin: s 41(4) Crss Examinatin f a Prir Incnsistent Statement The need t infrm witnesses f that intentin t assert cntrary facts Failure t d s runs the risk f it being precluded frm adducing cntradictry evidence.

9 At cmmn law this was knwn as the Brwn v Dunn rule. This is nw reflected in S46. Only perates in respect f relevant and admissible evidence. Re Examinatin Re-examinatin is permitted in relatin t matters arising frm crss examinatin nly. General rule: if a matter is nt raised during crss-examinatin cannt be a matter fr reexaminatin. Nt permissible t raise ther subject matters withut leave f the curt; S39b Matters arising frm crss-examinatin thugh can be asked withut leave; S38a. Re-examinatin generally ccurs in ne f three situatins: 1. Where witnesses cnduct has been called int questin during crss-examinatin 2. Where parts that are favurable t the ther side have been brught ut in crssexaminatin. 3. Where the witnesses credibility has been brught int questin due t prir incnsistent statement. Re-Opening Cases General prhibitin against a party splitting their case; R v Sma. Exceptin: This may be permitted where: 1) A witness is recalled because they were nt challenged n an issue, which was subsequently the subject f cntrary evidence. 2) Evidence relates t a nn cntrversial issue which was verlked. 3) Evidence relates t a matter which culd nt have been reasnably freseen wuld emerge as an issue. 4) The evidence culd nt have been btained with reasnable diligence at the time the party was cnducting its case.

10 TOPIC 4: DOCUMENTARY EVIDENCE AND OTHER EVIDENCE TEMPLATE WHAT TYPE OF EVIDENCE IS IT? Gverned by Part 2.2 f the Act 1. Witness describing the facts/events = Oral evidence given by witnesses 2. Dcuments recrding facts/events = Dcumentary evidence 3. Trier f fact directly bserving facts/events = (real r ther/demnstrative evidence) Either DOCUMENTARY EVIDENCE r f OTHER EVIDENCE Dealing with the permissible methds f presenting evidence in curt nt the admissibility, merely the ways it may be adduced. (Nt lking at admissibility here) Exam Tip: Cnsider carefully what type f evidence it is that we are talking abut. E.g. Fingerprints, DNA evidence etc. is ften referred t as real evidence but rdinarily they can nly be prved by ral r dcumentary evidence. IS IT A DOCUMENT? Dictinary f the Act (s 3) defines Dcument as any recrd f infrmatin, and includes a) Anything n which there is writing; r b) Anything n which there are marks, figures, symbls, r perfratins having a meaning fr persns qualified t interpret them. c) Anything frm which sunds, images r writings can be reprduced with r withut the aid f anything else. d) A map, plan, drawing r phtgraph Recrd f infrmatin Anything which cntains a recrd f infrmatin - cvers written paper dcuments and everyday items, such as mbile phnes, whitebards, DVD s, tape recrdings. Definitin prvides fr USB s and ipds, and presumably cvers transitry infrmatin (RAM) prvided it has been captured and reprduced. Examples f dcuments: E.g. bttles, mbile phnes, clthing etc. may be cnsidered a dcument as lng as thse items cntain a recrd f infrmatin. E.g. memry cards, DVDs, tmbstnes and branded livestck. What is nt a dc? Purely decrative symbls, r figures that have n meaning and are nt cvered by the definitin (cnsidered ther evidence ). IS IT DOCUMENTARY EVIDENCE? S47(1) S47 prvides that the rules f dcumentary evidence nly apply t dcuments, the cntents f which are f interests in the prceedings. RULE: If the purpse f adducing the dcument is t adduce evidence f its cntents it is dcumentary evidence and Part 2.2. will be applicable. If the purpse is t merely tender the dcument as a thing it is NOT dcumentary evidence and Part 2.2. des nt apply. Labels r identifying dcuments CL says labels affixed t bjects are nt dcumentary evidence: Cmmissiner fr Railways v Yung Evidence Act Part 2.2. says that they are. Labels are dcuments.

11 S 47(1): the Act says that labels are dcuments in that they are recrds f infrmatin, accrding t the dictinary, and they are tendered fr their cntents. S47(2): the cpy need nt be an exact cpy, as lng as it is identical in all relevant respects. S 48 PROVING CONTENTS OF DOCUMENTS All matters in S48(1) can be used as methds f prving a dcument regardless f whether r nt the dcument in questin is available; S48(2). (a) Prf by Admissin S48 (1) A party may adduce evidence f the cntents f a dcument t be prved by an admissin with respect t the cntents f a dcument. Admissin = statements adverse t a party s interests in the prceedings. (3) prvides that in rder t adduce evidence it must be: - In respect f the party s case against the ther party wh made the cncerned admissin, r - In respect f the party s case against the party wh adduced the evidence in that way. (b) The riginal dcument rule ablished (can nw use cpies) S48 prvides a range f methds by which the cntents f a dcument may be prved, including by cpies, transcripts, ral evidence. S 48(1) )(a)-(f): prvides a range f methds fr prving the cntents f dcuments the cntents f dcuments may nw be prved, fr example, via cpies, transcript f recrdings and smetimes by the ral evidence f witnesses. All f these methds may be used regardless f whether the riginal dcument was available t the ther party r nt: s 48(2). (c) Cpies and reprductins f dcuments: s 48(1)(b) RULE: A party may prve the cntent f dcument by tendering a cpy f it. There is n need t prduce the riginal dcument even if it is available. S48(1)(b) A dcument that is (r purprts t be) a cpy f the dcument in questin AND has been prduced (r purprts t have been prduced) by a device that reprduces dcuments. Cpy cannt be hand written. E.g. scanned riginals n a cmputer file. Des nt matter if the cpy is nt an exact duplicatin, as lng as it is identical in relevant respects; S47(2). (d) Transcripts r sund recrdings and cded material: S48(1)(c) RULE: Sund recrdings and cded material may be prved by way f transcripts. R v Cassar; R v Slieman (e) Dcuments prduced by cmputers r ther devices: s 48(1)(d) RULE: Allws intangible infrmatin, such as that cntained in cmputer hard drives, r ther devices t be prven by means f a printut. Cvers infrmatin that can be retrieved, prduced, r cllated frm a device. S146 presumes reliability f such dcuments and S147 des s if they are prduced in the curse f business. S147 presumptins are rebuttable, all that is needed is t adduce sufficient evidence t raise a dubt abut the accuracy r reliability f the dcument. (f) Business recrds: s 48(1)(e) RULE: Cpies, extracts r summaries f dcuments may be used as lng as they are part f a business s recrds.

12 S147 prvides a rebuttable presumptin as t the reliability f dcuments prduced by devices in the curse f business. Many dcuments prduced by a business are in fact cpies and if they are prduced in the rdinary curse f business they are reliable. (g) Public dcuments: s 48(1)(f) RULE: Public dcuments, such as a certificate f title t land, may be prved by cpies as lng as an authrised printer has prduced the cpies. Relevant authrity includes persn authrised n behalf f the gvernment, administratin f state, parliament. IS THE DOCUMENT UNAVAILABLE? S 48(4) RULE: s 48(4) allws unavailable dcuments t be prved by cpies, extracts, summaries r the ral evidence f witnesses abut the cntents f the dcument. Unavailable dcuments defined in Clause 5, Part 2 f the Dictinary. A dcument r thing is taken nt t be available t a party nly if: Cannt be fund after reasnable inquiry and search, r Destryed by party, r n behalf f the party nt in bad faith, r Impractical t prduce the dcument r thing during prceeding, r Prductin culd render persn liable t cnvictin fr an ffence, r Nt in pssessin r under cntrl f the party AND Cannt be btained by any judicial prcedure f the curt, r In pssessin r under cntrl f anther party t the prceeding wh knws r might reasnably be expected t knw that evidence f the cntents f the dcument is likely t be relevant. Was in pssessin r cntrl f such a party at a time when the party knew r might reasnably be expected t have knwn such evidence was likely t be relevant in the prceeding. S48(4) applies where nt available r there is n issue as t the existence r the cntents f the dcument: A party may adduce evidence f the cntents f a dcument in questin that is nt available t the party, r the existence and cntents which are nt in issue in the prceeding by: 1. Tendering dcuments that is a cpy, extract r summary 2. Adducing witness evidence f the cntents f the dcument in questin. IS THE DOCUMENT VOLUMINOUS AND COMPLEX DOCUMENTS? S 50(1) RULE: S50 allws fr cnvenience, bulk evidence t be adduced in the frm f a summary, especially fr fraud cases where there are a large amunt f dcuments. A party must apply fr leave t adduce evidence in the frm f a summary and the curt will grant leave if it is satisfied that the vlume r cmplexity f the dcuments makes it therwise incnvenient t examine the evidence. Authenticatin f Dcuments RULE: Under the Act, authenticatin is nw cnsidered a part f relevance. This is the first rule f admissibility. Lk at s 55 and 56. a. Only evidence, which is relevant, may be admitted. S57 and s 58 (p 8) IF NOT DOCUMENTARY IS IT OTHER EVIDENCE? (nn verbal and nt dcumentary) WHAT IS OTHER EVIDENCE? Called ther evidence, real evidence, demnstrative evidence. Dealt with in Part 2.3.

13 Identify what type f ther evidence it is. Exhibits physical bjects brught int curt Once tendered the bject can be taken int the jury rm fr the jury t inspect. View If the physical bject cannt be transprted int the curt the trier can g lk at it. S54: Views are evidence. Objects can be viewed utside curt if they t big t bring t the curtrm View is used as general term fr demnstratins, experiments and inspectins; S53. Demnstratin (type f view) invlves reprductin r recnstructin f the riginal event. Can be in curt r ut f curt as part f the view. Generating/Experiments (type f view) experiments invlve the generatin f new evidence The engineer might cnduct an experiment t test the c-efficieny f frictin f a particular set f stairs t see hw slippery they are and whether r nt they are within safety standards. Either in r ut f curt. WHEN & HOW CAN A VIEW TAKE PLACE? OUT OF COURT IN FRONT OF JURY: S 53 S53 nly applies t OUT OF COURT demnstratins, experiments r inspectins: Evans v The Queen HCA Attend a view: Real evidence that is nt apprpriate t be brught int curt the curt can g t the evidence. E.g. a view; when the judge and jury g ut t view the scene f a crime. S 53 requires that an applicatin be made t the curt fr an rder that a demnstratin, experiment r inspectin be made. S 53(3): sets ut the matters t which the curt must have regard in determining whether r nt t make an rder fr a demnstratin, inspectin r experiment may be held: a. Whether the parties will be present b. Whether the view will assist in reslving issues f fact r will assist in understanding the evidence c. The danger that the view may be unfairly prejudicial r misleading r cnfusing, r may result in an undue waste f the curts time d. The extent t which a demnstratin will prperly reprduce the relevant cnduct e. The extent t which the place r thing t be inspected has materially altered Cnduct a demnstratin/inspectin In the case f a demnstratin the extent t which the demnstratin will prperly reprduce the cntent r event t be demnstrated. In the case f an inspectin the extent t which the place r thing t be inspected has materially altered. S 53(4): prhibits the curt, including jury, frm cnducting experiments during deliberatins. S 53(5): permits the jury t inspect an exhibit during deliberatins. EXPERIMENTS MADE OUT OF COURT NOT IN THE PRESENCE OF JUDGE OR JURY RULE: S53 des nt apply t experiments cnducted by experts which are nt in the presence f the judge r jury. Des prvide guidance as t the use and admissibility f the evidence.

14 Jury is nly ging t have direct access t it if it takes place in curt. Mst experiments take place utside f curt prir t trial. DPP v Farquharsn (N.2) 2010 VSC 210 EXPERIMENTS IN THE JURY ROOM PROHIBITED DURING DELIBERATION RULE: S53(4) prhibits the curt (including the jury) frm cnducting experiments in the curse f its deliberatins. Reinstatement f the cmmn law expressed in Kzul v R. When the experiments cnducted by the jury g beynd a mere examinatin and testing f the evidence, and becme a means f supplying new evidence, they becme impermissible: Kzul v R.

15 TOPIC 5: RELEVANCE AND ADMISSIBILITY TEMPLATE IS THE EVIDENCE ADMISSIBLE? Evidence must be relevant in rder t be admissible. STEP 1: IS THE EVIDENCE RELEVANT? RULE: If evidence is relevant it is admissible: S 56(1) If evidence is nt relevant it is nt admissible: S 56(2) If evidence has a bearing n the issues in cnsideratin f reaching the decisin, it will be relevant. DEFINITION OF RELEVANT EVIDENCE S 55: 1) Evidence that is relevant in a prceeding is evidence that, if it were accepted, culd ratinally affect (directly r indirectly) the assessment f the prbability f the existence f a fact in issue in the prceeding. 2) In particular, evidence is nt irrelevant nly because it relates nly ta) the credibility f a witness; r b) the admissibility f ther evidence; r c) a failure t adduce evidence. TEST: Cnsidered in terms f relevance t the case (the elements f the ffence, r cause f actin). Evidence is relevant if it has sme ratinal cnnectin t a fact in issue, in the sense that it culd increase r decrease the prbability f that fact s existence: Smith v R Inferences as t relevance: s 58 When a questin arises as t the relevance f a dcument r a thing Sectin 58 permits the curt t examine the dcument r thing and t draw any reasnable inference frm it including an inference as t its authenticity r identity. Prvisinal relevance: s 57 Relevance f evidence will depend n the curt being satisfied f anther fact. E.g. the relevance f ne witness s evidence may ften depend n the evidence f a witness wh is t later give evidence. S57 prvides that if the questin whether evidence is relevant depends n the curt making anther finding, the curt may find that the evidence is relevant if it is reasnably pen t make that finding, r may find it relevant subject t further evidence being admitted at a later stage f the prceedings that will make it reasnably pen t make that finding. TEST: If evidence is admitted prvisinally under S57, it must be shwn ultimately t be relevant in rder t be admissible. STEP 2: IF EVIDENCE IS RELEVANT, DO ANY EXLUSIONARY RULES APPLY? If evidence is relevant, it is admissible UNLESS ne f the EXCLUSION RULES IN CHAPTER 3 apply (e.g. hearsay) STEP 3: IF EXCLUSION RULES APPLY, ARE THERE ANY EXCEPTIONS TO THIS? Sme rules f admissibility prvide fr exceptins t exclusin rules Sme hearsay is cnsidered sufficiently reliable Sme rules perate t limit the use f certain evidence that can be put. STEP 4: IF EVIDENCE IS RELEVANT, WILL JUDGE APPLY JUDICIAL DISCRETION? Even if evidence is relevant and admissible JUDICIAL DISCRETIONS t exclude evidence n the grunds f plicy r fairness principles exist as t whether the evidence shuld be allwed. FINALLY, IF EVIDENCE IS ADMISSIBLE, IS IT UBJECT TO JURY WARNING? Sme evidence despite being admissible may be subject t jury warning. NOT RULES OF ADMISSIBILITY perate AFTER the evidence is deemed admissible.

16 TOPIC 6: HEARSAY TEMPLATE S 59 perates by way f: 1. Determine the issues in the trial which lead us t relevance, then (Relevance template) 2. Determine what cnstitutes hearsay if we find that it is hearsay, then 3. It is excluded unless there is an exceptin t the exclusinary rule. ISSUE: IS THE STATEMENT S59 HEARSAY? (and therefr excluded) RULE: Generally, hearsay evidence is nt permitted. The rule against hearsay predminately excludes statements r representatins made ut f curt abut facts r matters in issue. They are cnsidered t be unreliable. S59 Hearsay Rule prvides that evidence that cnstitutes hearsay q being a previus ut f curt representatin q made by a persn t prve the existence f a fact q intended t be asserted is excluded as evidence. ELEMENT 1/2: HEARSAY EVIDENCE MUST BE PREVIOUS REPRESENTATION MADE BY A PERSON q Identify the representatin in rder t prve the fact that was intended was asserted. q Is it a previus representatin? (either rally, in writing, expressly, impliedly r by cnduct)? Representatin defined (in dictinary) t include: a) An EXPRESS r IMPLIED representatin (whether ral r in writing); r b) A representatin t be inferred frm cnduct; r - Silence r nn actin may cnstitute a representatin c) A representatin nt intended by its maker t be cmmunicated t r seen by anther persn; r d) A representatin that fr any reasn is nt cmmunicated. q The representatin must be made ut f curt q The representatin must be made by a persn Cant be machine ELEMENT 2/2: THE FACT MUST BE INTENDED TO BE ASSERTED RULE: Implied (r express) statement must be intended t fall under exclusinary rule (and therefre excluded): S 59 If tendered t prve truth f what it asserts = hearsay If the statement is tendered fr their truth t prve the fact this is NOT hearsay TEST: Test f intentin is bjective. Act says- it can reasnably be suppsed Ask: des it reasnable lk like that persn intended t make that statement? If bvius, then intended. What is the purpse f the evidence? Is it t prve a fact asserted in it? MUST BE INTENDED. Was the fact intended t be asserted by a persn wh made the representatin? Intentin requirement and IMPLIED representatins It is a previus, implied representatin that is used fr the purpse f prving the fact intended t be asserted by the implied representatin : s 59 Pllt case That s Pllt n the phne = intended implied- Caller intended t identify Pllt as the persn n the ther end f the phne. Waltn v R; Hell Daddy = Statement des nt EXPLICITLY assert any fact as it is a simply a greeting, BUT IMPLICITY asserts a fact my dad is n the phne. BUT was it INTENDED t identify as dad? NO.

17 implied assertin WAS NOT INTENDED t identify caller as dad, it was just a greeting, therefre nt hearsay, and s admissible. Intentin requirement and express representatins R v Lee: The intentin f the maker f the representatin is necessary in relatin t implied assertins, and useful in relatin t express assertins DO ANY EXCEPTIONS APPLY TO THE HEARSAY RULE?(and therefr make evidence admissible) Exceptins mean that hearsay may be admissible if.. 1. It is evidence that is relevant fr a NON-HEARSAY PURPOSE: s 60 Effect f S60 nce the representatin is admitted fr its nn hearsay purpse, it is admissible als fr its hearsay purpse. S60 will apply t evidence that has dual relevance such as prir incnsistent statements and t evidence frming the basis f an experts pinin, as nce admitted fr its nn hearsay purpse, S60 will allw them t be used as evidence f what they assert 2. FIRST HAND HEARSAY DEFINITION: First hand representatin is defined as a previus representatin that was made by a persn wh had persnal knwledge f an asserted fact : S62(1) RULE: First hand hearsay must cme with persn s knwledge f the fact. An exceptin t hearsay exclusinary rule is created under S62 (ie, if first hand satisfied, then admissible). First hand = Smene perceived the event and tld smene else and ne f thse tw are giving evidence. he said, she said TEST FOR PERSONAL KNOWLEDGE : It is enugh if can be reasnably suppsed that the maker had persnal knwledge: R v Vincent Þ STEP 1: DETERIMINE IF CIVIL OR CRIMINAL PROCEEEDING Þ STEP 2: DETERMINE AVAILABILITY Meaning f unavailability f persns ; Clause 4 f the Dictinary: The list is exhaustive. a) The persn is dead b) The persn is nt cmpetent t give evidence c) Wuld be unlawful fr the persn t give evidence d) Prvisin f the Act prhibits the evidence being given e) Reasnable steps have been taken t find the persn giving evidence with n success. f) Reasnable steps taken t find the persn and cmpel the party t give evidence g) Persn is mentally r physically unable t give evidence. 2A. FIRST HAND HEARSAY EXCEPTION IN CIVIL PROCEEDINGS s If the maker f the previus 1 st hand rep is NOT AVAILABLE S63 applies in civil cases where the maker f first hand hearsay is NOT AVAILABLE t give evidence. Prvides that a representatin can be given by a persn wh perceived the representatin was being made r A dcument cntaining a representatin. Ntice must be given t the ther party that the maker is nt available: s 67, De Rse v SA If the maker f the previus 1 st hand rep IS AVAILABLE Even where the maker f the representatin is AVAILABLE t give evidence, S64 will allw hearsay evidence t be used instead f calling the persn, if it wuld cause undue expense, delay r unreasnably practicable t call the persn. Evidence can be given either by - Smene wh perceived the representatin being made, r

18 - Dcument evidence f the representatin. S64(3) prvides that if a persn IS AVAILABLE AND IS TO BE CALLED then hearsay may still be given either by the maker r the persn wh perceived the representatin t be made. 2B. FIRST HAND HEARSAY EXCEPTION IN CRIMINAL PROCEEDINGS s Dcumentary Evidence Is Nt Permitted (Must Be Oral) If the maker f the previus 1 st hand rep is NOT AVAILABLE S65 allws fr first hand hearsay t be given in criminal cases where the maker f the previus representatin is nt available t give evidence. Ntice must be given t the ther party that the maker is nt available: s 67, De Rse v SA Nature f Previus Representatin> Representatins fr which sme guarantee f reliability I exists S65(2) f a) Made under a duty b) Made shrtly after and unlikely t t have been fabricated h c) Highly prbably reliable e d) Against the interests f the maker; S65(7) mrepresentatins already given in evidence in aprir prceedings (subject t the maker khaving been crss-examined r a reasnably epprtunity fr crss-examinatin); S65(3)- r (6) = Frm f First Hand Hearsay Allwed Oral evidence frm a persn wh witnessed the making f the representatin Dcumentary evidence is nt sufficient; Cnway v R Dcumentary evidence in the frm f transcript r recrding. Presumably als ral evidence frm a persn wh witnessed the making f the representatin. Representatins adduced by an accused; f S65(8) and (9) t h e previus 1 st hand rep IS AVAILABLE Dcumentary evidence Oral evidence frm a persn wh witnessed the making f the representatin. S 66: If the maker f the representatin is AVAILABLE there is n prvisin fr nt calling the witness and thus relying n the hearsay rule instead. Ie, they must be called fr the persn s evidence t be admissible. S66(2) makes admissible evidence f the hearsay if fresh in the memry. Requirement: will nly be admissible if, when the representatin was made, the ccurrence f the asserted fact was fresh in the memry f the persn wh made the representatin: s 66 (2A), Graham v The Queen (1998) What is fresh in the memry? S 66 (2A): curt may take int accunt all matters it cnsidered are relevant, t the questin, including (R v XY): Nature f the event cncerned Age and health f the persn Perid f time between the ccurrence f the asserted fact and the making f the representatin. Fresh in the memry desn't have t be recent r immediate: Graham 3. Mre REMOTE FORMS OF HEARSAY: s (Nt first hand hearsay) S69 Business recrds S70 Tags and Labels S71 Electrnic Cmmunicatins S72 Abriginal and Trres Strait Islander Traditinal Laws and Custms

19 TOPIC 7: OPINION EVIDENCE TEMPLATE ISSUE: IS THE OPINION ADMISSIBLE? RULE: prima facie pinins are NOT ADMISSIBLE (subject t exceptins and exclusins): S 76 The act des nt define the term pinin. Evidence f Previus Judgements and Cnvictins- nt admissible because its pinin: A determinatin by a curt is in effect the expressin f an pinin by a curt, whether by judge r jury, therefre nt admissible: s 91 STEP 1: IS THE STATEMENT AN OPNION? Distinctin between facts and pinin If the accused was well knwn t the identifying witness befre the crime then their identificatin is mre likely t be treated as a matter f fact rather than pinin. If the identifying witness did nt knw the accused befre the crime, then their identificatin will be treated as pinin. STEP 2: DO ANY EXCEPTIONS APPLY? ( therefr making the pinin evidence admissible) A. EXCEPTION: EVIDENCE RELEVANT OTHERWISE THAN AS OPINION EVIDENCE S 77 s 77 states that the pinin rule des nt apply t evidence f an pinin that is admitted because it is relevant fr a purpse ther than prf f the existence f a fact abut the existence f which the pinin was expressed. B. LAY PERSON OPINION EXCEPTION: S 78 RULE: pinins f lay witnesses can be admissible: S elements must be satisfied befre the pinin will be admitted as an exceptin under this prvisin REQUIREMENTS: 1. The pinin is based upn witnesses wn bservatins: S78(a) 2. The pinin is necessary in rder t understand the witness s testimny: S78(b) What is NECESSARY fr pinin; Hary v Merrill Identity f individuals, handwriting, r ther things Apparent age f persn Speed at which the bject is mving Cnditin r state f smething such as weather r rad Persn s emtinal state r anger. Persn s physical cnditin Character evidence which is exempted frm pinin rule under S110. List is nt exhaustive Where it is difficult r impractical t separate witness s bservatins frm their pinin, then the pinin is necessary t btain adequate accunt r understanding. Where it is difficult t separate a witness s bservatins frm his pinin It shuld be nted hwever that althugh an pinin may satisfy s 78 it must still survive the discretin f the trial judge befre it culd be admitted. Ie, dtill subject t discretin under S137: R v Van Dyk

20 C. EXPERT WITNESS OPINION EXCEPTION S 79 RULE: An expert s pinin may be admissible if it satisfies the requirements f s 79(1), (which, if challenged, will require a vir dire hearing accrding t s 189 f the Act.) S 79(1) REQUIREMENTS: q The expert must pssess specialised knwledge Nt defined in the Act. Whether pinin is based n specialised knwledge is a questin f fact; ASIC v Alder: Chartered accuntant with experience in a number f private and public cmpanies ffering evidence f what is expected f a diligent directr= specialised knwledge. Chartered accuntant with n such experience = nt specialised. q The specialised knwledge must be based n the experts training, study r experience A witness may qualify as an expert n the basis f either training, educatin r experience If pinin is based slely n experience, = ad hc expert and it is necessary t establish nature and extent f experience t establish specialised knwledge. q The experts pinin must be whlly r substantially based n their specialised knwledge. Can nly give pinin evidence n areas f expertise and cannt stray int ther areas. Must determine: 1. What is the pinin ffered by the expert 2. Is that pinin based n special knwledge frm an area f expertise. If multiple pinins are ffered then each must be based n the specialised knwledge f the expert q Basis Rule requirement (expert must prvide facts n which pinin is based) NOTE - S79 des nt expressly adpt a strict basis rule, as a matter f practicality, the expert will nrmally be required t set ut the facts upn which the pinin is based in rder t allw the curt t assess whether the pinin satisfies the requirements f S79: Ramsay v Watsn STEP 3: IF 1 OF THE EXCEPTIONS APPLY (thereby making the pinin admissible) DO ANY DISCRETIONARY EXCLUSIONS APPLY (S135 r S137)? (thereby making the pinin inadmissible) Opinins that are admissible as an exceptin under S78 (lay persn exceptin) r S79(expert witness) may be excluded by the trial judge in the exercise f their discretinary pwers. Curt can use discretin t exclude pinins frm either lay r expert witnesses if they are: highly prejudicial twards an accused r defendant in such circumstances it will be pssible t argue that the prbative value f the pinin is utweighed by its prejudicial effect under S135 r S137.

21 R v Van Dyk

22 ISSUE: IS THE ADMISSION ADMISSIBLE? TOPIC 8: ADMISSIONS TEMPLATE RULE: admissins are prima facie admissible (as an exceptin t the hearsay and pinin rules; s 81.) S81 prvides that admissins are exceptins t the hearsay and pinin evidence rules. (1) Hearsay rule and pinin rule d nt apply t evidence f admissins (2) Hearsay rule and pinin rule d nt apply t evidence f a previus representatin. That was made in relatin t an admissin at the time the admissin was made, r shrtly befre r after that time, and T which it is reasnably necessary t refer in rder t understand the admissin. STEP 1: IS THE STATEMENT AN ADMISSION? Highlight admissin and define why it is an admissin Is the assertin made against ne s wn interests? What are admissins? Defined in Dictinary as a previus representatin which is adverse t the persn s interest in the utcme f the prceeding. Brad definitin f admissin = bth admissins as mere statements against interest and full cnfessins t criminal ffences. Examples f ptential admissins: Express admissin: I was speeding Express admissin relevant t litigatin in negligence: I shuld have been mre careful Implied admissin: I didn t mean t hurt her Implied admissin by cnduct: running away in respnse t the wrds Stp, Plice, r a failure t deny an allegatin when it wuld be reasnable t expect a denial Telling lies: Edwards v R (1993) STEP 2: DO ANY EXLUSIONS APPLY? (therefre making the admissin inadmissible) a) GENERAL RULES OF EXCLUSION (CIVIL & CRIMINAL) Þ S82 Exclusin f evidence f admissins that is nt first hand RULE: admissible admissin must be first hand. If nt, ie is secnd hand r remte, it will be excluded under the hearsay exclusinary rule: S82 S82 nly perates t restrict the applicatin f S81 t first hand admissins. Þ S83 Admissins nt admissible against third parties the admissin can nly be used and admissible against the persn wh made it, nt a third party: S83 Exceptin is if a third party cnsents; S83(2). Þ S84 Admissins influenced by vilence and ther cnduct RULE: s 84- admissins nt admissible if influenced by (a) vilent, ppressive, inhuman r degrading cnduct, whether twards a persn wh made the admissin r twards anther. (b) threat r cnduct f that kind. Requirement: nly applies if the party has raised the issue abut the admissin being s influenced by prscribed cnduct.

23 Burden Of Prf: Once raised, the burden falls n the party seeking t adduce the admissin t vercme the threshld f admissibility. Party must prve n the balance f prbabilities that it was nt influenced What is ppressive cnduct? R v Ye Zhang: threat f physical vilence if act nt dne b) SPECIFIC RULES OF EXCLUSION (CRIMINAL ONLY): Þ S85 Admissins by criminal defendants in the presence f investigatrs S85, supplements S84, and applies nly in criminal cases and nly where the admissin was made by a defendant in the presence f investigating fficials. RULE: S85(2): an admissin will nt be admissible unless it was made in circumstances that make it unlikely that its truth was adversely affected. TEST: wuld the circumstances in fact adversely affect the truth f the admissin. Burden f prf: the prsecutin If that burden is nt discharged the admissin will be inadmissible In the presence : It is nt necessary that the admissin be made while a persn is in custdy r under arrest, r in a plice statin Nichlls v R (2005) Circumstances that may adversely affect the truth: S85(3)- circumstances that the curt must take int accunt in determining whether the test in s 85(2) has been satisfied. This includes; The persnal characteristics f the defendant, age, persnality, educatin, mental r physical disability, and the manner f questining, including any threats, prmises r inducements. List is nn exhaustive. R v Dnnelly; depressed mental state did nt affect the accused s admissin t his wife s murder. R v Braun; defendant admitted t starting a fire, hwever had histry f attentin seeking behaviur and mental cnditins=truth adversely affected Þ S86 Exclusin f recrds f ral questining and mandatry recrding f admissins S 86(2) excludes a dcument prvided n behalf f the fficial, unless accused acknwledges that the recrd is true, by signing, initialling r therwise marking the dcument: s 86(3). Hwever, this is nly if the unsigned dcument is used t prve an admissin. Nte: Audi and vide recrdings and transcripts aren t dcuments fr the purpses f s 86: s 86 (4) Plice may nnetheless give ral evidence f an alleged admissin assuming t be excluded by mandatry recrding requirements. Þ S89 Silence A Persn wh believes n reasnable grunds that they are suspect f having been party t an ffence is entitled t remain silent when questined by any persn in authrity abut the ccurrence f the ffence: Petty v R RULE: n adverse inference can be drawn against an accused persn by reasn f their failure t answer questins r prvide infrmatin: S89, Petty v R S89 perates as prhibitin n certain inferences and as an exclusinary rule. If a party has remained silent when questined during an fficial investigatin, that fact cannt be held against him in any way. Evidence that a party failed t answer questins r answered n cmment will ften be excluded because it is nt relevant. What inferences can we draw frm silence? S89(4) In this sectin, inference includes - An inference f cnsciusness f guilt - Inference relevant t a party s credibility. Failure t mentin a defence later relied n

24 RULE: N adverse inference can be drawn frm the earlier failure t mentin a defence. Sanchez v R [2009] c) DISCRETION TO EXCLUDE ADMISSIONS: NOTE: ther discretins still apply; this is just a specific ne t admissins If prima facie admissible, curt may exclude admissins in circumstances f 1. UNFAIRNESS (s 90, nly applies t admissins) r Eg f unfair circumstances: - The unreliability f the admissin: R v Swaffield; Pavic v R (1998) - Frensic disadvantage: Fster v R (1993) - Imprper plice cnduct: Van Der Meer v R (1988) - Infringement f defendant s rights: Fster v R (1993) 2. where they have been IMPROPERLY OBTAINED (s 138(2), applies t all evidence). - The balancing exercise invlves a weighing f tw values; The value f admitting evidence that will help t cnvict the guilty The value f discuraging r nt cndning plice miscnduct. d) JUDICIAL WARNINGS with respect t ptentially unreliable evidence, including admissins.

25 TOPIC 9: TENDENCY AND COINCIDENCE EVIDENCE TEMPLATE IS THE SIMILAR FACT EVIDENCE (tendency r cincidence) ADMISSIBLE? RULE: tendency and cincidence evidence is inadmissible unless certain cnditins are met under S97 and S98 f the Act. IS THE FACT SIMILARE EVIDENCE? DEFINITION: Similar fact evidence is evidence that n a previus ccasin a persn acted in a similar manner t that nw alleged in curt. 2 types f similar fact evidence: 1. S97 Tendency: a. evidence f character, reputatin, cnduct r tendency f a persn that is tendered t prve that a persn has tendency t act in a particular way, r have a particular state f mind. b. Eg. evidence f the behaviur r dispsitin f a persn that is adduced t shw that a persn has a tendency t act in a particular way. 2. S98 Cincidence: a. the ccurrence f tw r mre events which is tendered t prve, having regard t any similarities in events, it is imprbable that events ccurred cincidently. Ntice f intentin t adduce tendency evidence must be given in writing hwever, this ntice can be waived as per S100. IDENTIFY IF CIVIL OR CRIMINAL CASE CIVIL CASES RULE: Tendency and cincidence evidence are nt admissible, unless the evidence will, either by itself r having regard t ther evidence, have significant prbative value. (ie, if abve is satisfied, then will be admissible) Can still be excluded under S135 discretin. TEST: What is required if evidence is t admissible is that it culd ratinally affect the assessment f the prbability f the relevant fact in issue t a significant extent: Zaknic v Svelte Crpratin; CRIMINAL CASES RULE: The tendency and cincidence evidence is nt admissible unless q it has Significant Prbative Value and q it substantially utweighs any prejudicial effect it may have n the accused (S101) (ie, if abve is satisfied, then will be admissible, if nt then inadimissible) Similar fact evidence can be in the frm f prir cnvictins, unprven allegatins r can relate t acts that ccurred after the event that lead t the charge. Significant Prbative Value : means mre than relevance but less than a substantial degree f relevance, and that it means imprtant r f cnsequence-there is n need fr it t establish a striking pattern r similarity between the charge act and the dispute evidence: R v PWD [2010] NSWCCA Test fr Prejudicial Effect : whether there is a risk f an unfair trial: R v PWD [2010] NSWCCA If there is a real risk that the admissin f such evidence may prejudice the fair trial f the criminal charge, the interests f justice require the trial judge t make a value judgement, nt mathematical. The Curt stated that the balancing exercise under S101(2) is f the same nature as that under S137 discretin.

26 If similar fact evidence is admitted, then there is n scpe fr it t be excluded pursuant t the exercise f the discretin in S137. Re s98 cincidence, ask: Is it just mere cincidence f did the accused have a specific state f mind?? Evidence t shw cannt a mere cincidence. CGL v DPP 2010 Re s97 tendency: The mre specific f the identified similarity the mre likely it is t be prbative f a tendency t act in a distinctive way t d acts f a distinctive kind. (ie, mre likely t satisfy s 97 and be admissible) The mre general, the mre difficult it is t demnstrate a tendency that has significant prbative values. (ie less likely t satisfy s 97 and be admissible) CGL v DPP 2010 Similar fact evidence when NOT DIRECTLY RELEVANT TO FACT IN ISSUE (circumstantial) Tendency evidence in regards t smething ther than whether the accused is guilty as charged. Relatinship evidence Large bulk appears in sexual ffence cases The paradigm case in which relatinship evidence is admitted is when the accused is charged with a sexual ffence and there is an alleged histry f sexual miscnduct by the accused twards the cmplainant. In such circumstances, the uncharged acts are admitted t establish a sexual relatinship between the parties. R v Beserick