LAW550 Litigation Final Exam Notes Important Provisions to Keep in Mind... 2 Voir Dire... 2 Adducing of Evidence Ch 2 Evidence Act... 4 Calling Witnesses... 8 Examination of witnesses... 11 Cross-Examination... 17 Re-Examination... 22 Judicial Warnings... 23 165 Unreliable evidence... 24 Documentary Evidence... 29 Real Evidence... 33 Relevance... 35 s 55 Evidence Act 1995 (NSW)... 36 Exclusion of Admissible Evidence... 39 Discretion to exclude... 39 s 138 Exclusion of improperly or illegally obtained evidence... 41 Hearsay... 42 s 59 The hearsay rule exclusion of hearsay evidence... 43 Hearsay and non-hearsay uses of a previous representation (PR)... 43 Exceptions to Hearsay... 45
Exceptions to Hearsay Admissions... 47 Admissions... 52 Types of admissions... 53 Opinion Evidence... 56 Part 3.3. of Evidence Act s 76... 57 Exceptions... 57 Expert Evidence... 60 Tendency and Coincidence... 66 Tendency evidence in civil cases... 69 Tendency evidence in criminal cases... 70 What has it been used for?... 75 Cases in which ss 97 and 98 do not apply:... 76 Credibility Evidence... 78 Combined effect of ss 101A and 102... 79 common law test for assessing whether a matter is relevant only to credibility... 79 Exceptions... 80 Character Evidence... 83 Rebuttal of good character evidence... 85 Important Provisions to Keep in Mind Voir Dire 1. Voir dire trial within a trial we hear then we say s 189 Evidence Act 2
1. takes place in absence of jury 2. if determination of whether (a) evidence should be admitted or (b) evidence be used against a person or (c) a witness is competent of capable depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question 1. (2) if there is a jury, a prelim question whether (a) particular evidence is evidence of an admission, or evidence to which s 138 applies or (b) evidence of an admission, or evidence to which s 138 applies, should be admitted is to be heard and determined in the jury s absence 3. s 142 civil standard of proof (balance of probabilities) 1. importance of evince 2. gravity of matters alleged s 11 general powers of act 3. power of court not affected by Act except so far s this Act provides otherwise expressly or by necessary intendment particularly, powers of court re: abuse of process in proceedings to affected 4. important for two reasons: 1. overarching responsibility of court to control proceedings and conduct a fair trial 2. shows that EA doesn t interfere with inherent court powers to control proceedings 5. Mooney v James [1948] VLR 22 1. inherent power of court Barry J 1. duty of judge to regulate and control proceeding so that fair trial all powers necessary to ensure that can control manner in which evidence is elicited 6. if parties do not take up opportunities offered to them by court to present evidence etc, then likely not to be held as unfair trial in appeal s 192 Leave, permission or direction to be given on terms 7. court can give this on such terms as the court thinks fit 8. (2) takes into account: 1. (a) extent to which to do so would add unduly to, or to shorten, the length of the hearing 2. (b) extent to which to do so would be unfair to a part or to a witness 3
3. (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and 4. (d) the nature of the proceeding, and 5. (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. Stanoevski v The Queen (2001) 202 CLR 115 1. S legal practitioner, charged with conspiring to defraud an insurance company 2. S raised her own good character, P came across some evidence that on some prior occasion S had been investigated by law society for allegations she had witnessed signature without client being there 3. P sought leave to cords-examine her about the law socety s investigation into the allegations, leave granted 1. on appeal 2. whether judge had failed to advert to the statutory discretion in s 192 and provide leave properly 3. went to HCA, and held judge did not 1. collateral issue of character too much time focused on 1. extra time, not necessary for conviction or acquittal, since character has limited probative value 2. takes jury s eye off main issue of who blew up the car 3. unfairness to accused where her credibility and reliability was important 4. very little weight in relation to main issue 2. R v Reardon [2002] NSWCCA 203 1. no need for judge to expressly refer to s 192 as long as reasons implicitly cover those matters that ought to be taken into account Adducing of Evidence Ch 2 Evidence Act 2. Focuses on how evidence is adduced, not whether admissible 3. s 12 competence and compellability 4
1. every person competent to give evidence and a person who is competent to give evidence about a fact is compellable to give that evidence 2. common law test being able to distinguish between right and wrong 1. if can t can still maybe given unsworn evidence 1. unsworn evidence has less weight 2. can only be convicted on basis of sworn evidence 4. 13 Competence: lack of capacity 1. (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): 1. (a) the person does not have the capacity to understand a question about the fact, or 2. (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, 2. and that incapacity cannot be overcome. 3. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. 4. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. 5. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. 6. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: 1. (a) that it is important to tell the truth, and 2. (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and 5
3. (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. 7. SH v Regina [2012] NSWCCA 79 1. Set aside conviction based on unsworn evidence of child 2. Court refrained to tell child about requirements in 13(5) 5. Section 30 Interpreters 1. May overcome incapacity in 13(1) 6. Section 31 Deaf and mute witnesses 1. May overcome incapacity in 13(1) 7. Section 17 Competence and compellability: defendants in criminal proceedings 1. (1) This section applies only in a criminal proceeding. 2. (2) A defendant is not competent to give evidence as a witness for the prosecution. 3. (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. 4. (4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury s absence) that the witness is aware of the effect of subsection (3). 8. 18 Compellability of spouses and others in criminal proceedings generally (spouses, parents, de facto partners, children) 1. (1) This section applies only in a criminal proceeding. 2. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: 1. (a) to give evidence, or 6
2. (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution 3. 4. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: 1. (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and 2. (b) the nature and extent of that harm outweighs the desirability of having the evidence given. 5. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: 1. (a) the nature and gravity of the offence for which the defendant is being prosecuted, 2. (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, 3. (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, 4. (d) the nature of the relationship between the defendant and the person, 5. (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. 6. (8) If an objection under this section has been determined, the prosecutor may not comment on: 1. (a) the objection, or 2. (b) the decision of the court in relation to the objection, or 3. (c) the failure of the person to give evidence. 7
7. Does not apply in certain crimes per s 19 - Compellability of spouses and others in certain criminal proceedings 1. Section 18 does not apply in proceedings for an offence against or referred to in the following provisions: Section 222 (Endangering children in employment), 223 (Certain employers of children to be authorised), 227 (Child and young person abuse) or 228 (Neglect of children and young persons) of the Children and Young Persons (Care and Protection) Act 1998, Section 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986. 8. R v Gulam Mohammad Khan (1995 unreported NSWSC) 1. K found wife and best friend in bed, fight ensued and stabbed friend who died 2. K tried for murder with K arguing provocation 3. Crown argued he knew in advance and planned to catch them 4. Wife objected to testifying for the Crown, but had given a statement earlier she wished to retract, said some things she had not given freely 5. Crown considered calling her as unfavourable witness, but crucial point was that K and wife still living together and had children 6. Higgin J needed to determine if wife was compellable 1. As marriage was continuing and there was children and case could be proved without wife s testimony, relationship was more important to preserve rather than the harm caused if the evidence was given wife not compelled to give evidence 1. in this case, significant evidence other than wife s testimony so her evidence not as necessary as in perhaps another case 2. Real balancing act Calling Witnesses 8
1. Who can call a witness? 1. Party that carries the evidentiary burden can call witnesses 2. Failure to call witness in civil cases 1. Common law position set out in Jones v Dunkel (1959) 101 CLR 298 1. Inference can be drawn that if a party does not call a witness they reasonably could be expected to 2. Fact finder may infer that evidence witness would have not have given helpful evidence 2. Qualified in Manly Council v Byrne (2004) NSWCA 123 and Gaskell v Denkas Building Services Pty Ltd (2008) NSWCA35 1. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. 2. Such an inference is available only if the evidence otherwise provides a rational basis on which that unfavourable inference can be drawn. 3. In criminal cases 1. Is more problematic in criminal cases given right to silence 2. Evidence Act s 20 Comment on failure to give evidence for indictable offence 1. (2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. 3. Judge must explain to a jury the right to silence and note the Crown must prove the case, failure to call a witness is not necessarily proof 1. Azzopardi v The Queen (2001) 205 CLR 50 4. Calling of witnesses in adversarial proceedings 1. Subject to general principle in s 11 court has power to control conduct of proceedings 9
2. Parties free to call witnesses they want and desire to prove their case 3. Mostly governed by court practice and common law principles 4. Judges should not call witnesses in civil cases but may do so if circumstances are appropriate in criminal matters 1. Judge may also ask why certain witness was called and may make comment to jury to address Crown s failure to call witness 5. R v Apostilides (1984) 154 CLR 563 1. Prosecution obliged to call witnesses that are material to the Crown s case 1. Failure to do so may be an unfair trial 2. Judge has powers to ensure trial proceeds fairly 3. Judge can 1. Ask prosecutor why witness has not called 2. Ask prosecutor to reconsider 3. May comment about failure to call to jury 4. Only in exceptional circumstances should this occur/case be set aside 6. R v Kneebone (1999) 47 NSWLR 450 1. K charged with sexual assault of 14 year old, mother of victim was around at time, pretty much a witness, evidence she gave to police was inconsistent with victim s story 2. Crown did not call mother as prosecutor though her unreliable 3. On appeal raised Apostilides case 1. Held Crown don t have to call unreliable, untrustworthy or unnecessary but should be able to give reasons as to why 4. Failing to call witness as they do not fit in with prosecutor s case/is in D s camp 1. Dangerous as it can result in miscarriage of justice 2. there was a miscarriage of justice, and retrial ordered 10
7. Velevski v The Queen (2002) 76 ALJR 402 1. No need to call every conceivable witness 2. Case involved multiple murders and various specialists to work out how it occurred 3. 5 pathologists called, 1 by defence 4. All 6 differed in views but majority held it was not a murder suicide (by deceased wife) 1. Only one had examined the bodies and he said it was not a murder suicide 2. Detective did not get statements from those that differed 3. Prosecution did not call doctors that agreed 5. High Court held Crown should have called experts but there was no miscarriage of justice as jury didn t need to speculate what other witnesses would have said Examination of witnesses 1. Judges should intervene in only limited cases (objections or good reason to question witness, e.g. removing ambiguity) 1. R v Esposito (1998) 45 NSWLR 442 1. Once judge resorts to extensive questioning in criminal matter that resemble cross examination, judge is on thin ice 2. Can only occur when judge is clarifying 2. Plaintiff then defence for calling witnesses (p 35-36 for full order) 3. 27 Parties may question witnesses 1. A party may question any witness, except as provided by this Act. 4. 28 Order of examination in chief, cross-examination and reexamination 1. Unless the court otherwise directs: 11