4022LAW Evidence Law Notes

4022LAW Evidence Law Notes Hearsay 6 ORIGINAL EVIDENCE: When an out-of-court statement is not hearsay 6 Res gestae and the inclusion of evidence 8 Exceptions to hearsay: statements proving the nature of a business 8 Exceptions to hearsay: statements about the makerʼs contemporaneous physical or mental health, fitness or state of mind 9 Exceptions to hearsay: statements made in previous proceedings 9 Exceptions to hearsay: informal admissions 9 Exceptions to hearsay: statements by persons now deceased 9 Section 93B, Evidence Act 1977 (Qld) 10 Admissions 11 Confessions 15 A. Is the confession voluntary? 15 B. Discretion to exclude on Grounds of Unfairness 16 C. Discretion to exclude on Grounds of Public Policy 18 D. Discretion to exclude if probative value is outweighed by possibility of prejudice 19 NB: Confession can only be used against the confessor 20 Opinion Evidence 22 Lay Opinions 22 Expert Opinions 23 Is an expert opinion necessary? (to help the jury understand the issues)23 A recognised field of expertise? 25 Is the witness an expert in that field? 26 D. Expertʼs evidence must stay within their expertise 27 E. Ultimate Issue Rule 27 F. Is testimony based on admissible evidence? 27 1

Expert opinions and civil procedure 28 Real and Documentary Evidence 29 DOCUMENTARY EVIDENCE 29 What is a document? 29 Real v documentary evidence 29 Testimonial purposes and hearsay: 30 Authentication 34 Authentication: Books of Account 35 Propensity and Similar Fact Evidence 36 When is SFE an issue? 38 Relevant statutory provisions 39 Hotch and the legislative response in s132a EAQ- 39 Civil cases 41 Character Evidence 42 Definitions 42 Accused leading evidence of good character 42 Dealing with the accusedʼs evidence of character 43 Prosecution leading evidence of bad character: common law 44 Prosecution leading evidence of bad character: statute 44 Co-accused leading evidence of bad character. 45 Privy Council held that in the circumstances of the case it was most relevant for King to be able to show, if he could, that Lowery had the most violent and callous personality. It was also in Kingʼs interest to lead evidence that he himself was, by contrast, easily led and dominated. The psychologistʼs evidence was relevant if it tended to show that Kingʼs version of the facts was more probable than Loweryʼs. It would probably have been admissible in any case, even if Lowery hadnʼt raised his good character. But Lowery opened the door wide for this evidence when he claimed that he was not the kind of person to commit that kind of offence, and that the killing was Kingʼs sole responsibility. In sum, it would have been unfair for King not to be permitted to rebut Loweryʼs claims about personality/character. 45 Credit of a witness generally 46 2

Character of the victim 46 Character of the victim: sexual offences 46 Credit of the victim: sexual offences 46 Witness Examination 49 General principles relating to witness examination 49 The right to remain silent 49 COURSE OF EVIDENCE 49 ADVOCATE SPEECHES 49 PRESENTATION 50 EXAMINATION IN CHIEF 50 Examination in chief: 1. LEADING QUESTIONS 50 Examination in chief: 2. REFRESHING MEMORY 51 Examination in chief: 3. PRODUCTION OF THE DOCUMENT 52 Examination in chief: 4. HOSTILE WITNESSES 53 QEA Section 101 53 Witness may not corroborate himself/herself (ban on prior consistent statements) 54 The rule in Browne v Dunn (1829) 57 ER 909: 54 FINALITY OF ANSWERS ON COLLATERAL MATTERS 55 Exceptions to Finality Rule 55 CROSS EXAMINATION 56 RE-EXAMINATION 56 REBUTTAL 56 ATTACKING WITNESS CREDIT: YOUR WITNESS 57 ATTACKING WITNESS CREDIT: YOUR WITNESSʼS CREDIT USE EAQ s 17: 57 ATTACKING WITNESS CREDIT: OTHER WITNESSESʼ CREDIT USE EAQ s 18: 57 EAQ s 19 58 3

10 Commandments of Cross-Examination 58 Special witnesses 58 Corroboration 59 Evidence Requiring Corroboration 59 What kinds of evidence maybe corroborative 62 What is not corroborative? 62 Identification evidence 62 Identification evidence 62 Directing the jury on identification evidence 64 Directing the jury on identification evidence 64 Warnings 64 Vulnerable Witnesses 66 Competency 66 Vulnerable witness categories 67 Special witness provisions 67 Protected witness provisions 69 Children and affected children provisions 70 Australia: measures to protect child witnesses 71 Victim witnesses in sexual assault cases 72 Statements made before proceedings by an intellectually impaired person or child documentary hearsay 73 Witness anonymity 73 Competence, Compellability & Privilege 74 Competence & compellability 74 Competence 74 Section 9 EAQ 74 Competence ss 9A 9D EAQ 74 Compellability 75 4

Introduction to privilege 75 Introduction to privilege 76 Privilege against self-incrimination: s10 EAQ 76 Legal Professional Privilege 77 Waiver of LPP 78 ʻExceptionsʼ to Privilege 79 5

Hearsay Hearsay not defined in the EAQ, so common law definitions apply. (But NB exceptions to hearsay exist both at common law and in statute.) Hearsay is out-of-court statement offered in court as proof of the truth of the contents of the statement. There are two elements to that definition: 1. the statement was originally said, written, printed or otherwise communicated outside of court; and 2. the purpose of seeking its admission is to prove that what was said, written, printed or communicated was true. Original out-of-court statement includes documents (which is defined widely). For example, an airline ticket as evidence that someone had flew was hearsay: Re Gardiner (1967) 13 FLR 345. Conduct which is communicative can also come within the scope of the hearsay rule. For example, a nod of the head indicating agreement or ʻyesʼ; or a shrug indicating ʻI donʼt knowʼ: Chandrasekera v R [1937] AC 220. Conduct which is impliedly assertive can also constitute hearsay under common law: Manchester Brewery v Coombs (1900) 82 LT 347. ORIGINAL EVIDENCE: When an out-of-court statement is not hearsay If what is relevant is the fact that the statement was made, rather than the truth of what was said, so that the statement is not relied upon to prove the facts narrated in the statement, then what is involved is not hearsay. - Kamleh. This can happen in a number of scenarios: Future intention - The statement is relevant to the makerʼs intention to do something in the future for example, the victimsʼ intentions in Hytch and Walton, and the accusedʼs intention in Kamleh (NB this is controversial - why should evidence of an accusedʼs intention be allowed, but not evidence of the accusedʼs statement of what themselves said they did?) Allowing statements of intention can be used to draw inferences on subsequent events (by use of the assumption that people act on their intentions). R v Hytch [2000] QCA 315 is the key case here. The case was about H who was charged with manslaughter of Rachel Antonio whose body has never been located. Although barely 16 years of age at the time of her disappearance, she had earlier formed a romantic relationship with H, who was 26 years old. He wished to end their relationship, but she told friends that she had arranged to meet with H, and that she intended to pretend to him that she was pregnant, in the hope of extorting money out of him in revenge. She was last seen alive near the spot where she had told friends she intended to meet H. The issue was the admissibility of the statements she had made to friends of her intended meeting with H. Hearerʼs state of mind - The statement is relevant to its likely impact on the hearerʼs state of mind for example, Subramanium (terrorist duress case - evidence of terroristʼs threats to hostage relevant (& therefore original evidence) as they show that the hostage was under duress to do the acts stipulate by the terrorists) State of knowledge - The statement is relevant to someoneʼs state of knowledge for example, the accused in Kamleh. A statement can be used as evidence of the 6

knowledge of the maker of a significant event in the past: Kamleh v R (2005) 213 ALR 97 (turning the TV volume up case). Nature of relationship - Evidence of what has been done or said by parties will be admissible to show the nature of their relationship. For example, in Wilson v R (1970) 123 CLR 337. the High Court upheld the admission of evidence by witnesses who had heard the deceased say to the accused (her husband), ʻI know you want to kill me for my moneyʼ, not for the hearsay purpose of proving that the accused wanted to kill the deceased, but to show the nature of the relationship that the couple shared. Relationship evidence is not restricted to relationships between intimates: R v Clark (2001) 123 A Crim R 506. Provided relevance is established, it applies to all types of relationships. Evidence shedding light on the relationship at issue will be admissible even when the statements were not made in the presence of the accused: Clark. Note EAQ s132b explicitly allows evidence of a domestic violence relationship to be admitted as evidence of the nature of the relationship. NB telephone call exception - (from Walton and Pollit) this is confined to identifying the caller on the other end by means of the implied assertions of the person whose end of the conversation is being over heard. For example, in R v Firman (1989) 32 SARS 391, it was held that telephone calls made to the accusedʼs premises by persons unknown enquiring about drug purchases were evidence only of the fact that such calls were made, and that the caller believed F to be a drug dealer, and not evidence that he actually was. 7

Res gestae and the inclusion of evidence Res gestae will allow utterances made by people at the very moment when the critical events were occurring. Res gestae is not an exception to the hearsay rule - res gestae evidence is considered original evidence. The leading UK case is Ratten v R [1972]. It had two elements: 1) the ʻcontemporaneityʼ of the utterance to the event it is describing; and 2) that the event itself dominates the mind of the utterer to the exclusion of any opportunity for the invention of falsehood. The requirement for contemporaneity was sidelined somewhat by the High Court in Walton, Pollit and Benz, rather what is important is the fact the statement was inspired or provoked by the event. R v Andrews [1987] is another more recent UK case which sets out the justification of the res gestae as: the spontaneity of the statement under the influence of the vents to which it relates. It set down five relevant principles: 1. Can the possibility of concoction or distortion be disregarded? 2. Was there any real opportunity for ʻreasoned reflectionʼ? 3. Was the event that triggered off the utterance still dominating the thoughts of the maker? 4. Are there any special features in the case that would suggest a motive for fabrication? 5. Could error have crept in for any other special reason, such as the maker being drunk? There are two main heads of res gestae. 1. Evidence of things that happened which occurred so close in time, either before or after a disputed event, that the disputed event cannot be properly understood without reference to that evidence as part of the wider context of the disputed event. Cases often refer to res gestae evidence under this head as forming a wider part of the whole transaction of which the offence or disputed events were only a part. E.g. OʼLeary v R (1946) 73 CLR 566. 2. Evidence of spontaneous statements made by participants or witnesses close to the time of an event. The spontaneity of the statement and its occurrence close to the time of the events in question supposedly helps ensure that the evidence is reliable, because under those circumstances, it is considered unlikely to have been fabricated. Courts often refer to the necessity for contemporaneity with the transaction in question: Vocisano v Vocisano (1974) 130 CLR 267, 273. It will probably be sufficient if there is ʻapproximate, if not exact contemporaneityʼ: Pollitt v R (1991) 174 CLR 558, 583, There is also a necessity for the statement to be reliable; this element is usually satisfied if the statement was made spontaneously (as against being a mere historical narrative occurring shortly after the event): Vocisano, 273. Exceptions to hearsay: statements proving the nature of a business This exception allows statements to be admitted concerning the nature of a business. This exception has been useful in proving charges against SP bookmakers: McGregor v Stokes [1952] VLR 347; Police v Machirus [1977] 1 NZLR 288; and drug traffickers: R v Firman (1989) 52 SASR 391. 8

Exceptions to hearsay: statements about the makerʼs contemporaneous physical or mental health, fitness or state of mind Note that this exception only allows statements regarding the makerʼs contemporaneous health or feelings statements about his or her past health are not admissible under this exception: Ramsay v Watson (1961) 108 CLR 642. E.g in R v Perry (No 2) (1981) SASR the Crown was allowed to adduce evidence of symptoms described by a man to his doctor in the subsequent trial of his wife for attempting to murder him by arsenic poisoning. Exceptions to hearsay: statements made in previous proceedings At common law statements given in the form of sworn evidence in previous proceedings between the same parties are admissible in later proceedings where an witness cannot attend for some extenuating reason (e.g. death). This is now mostly governed by statute though. The Justices Act 1886 (Qld) s111 provides the transcript of evidence at a committal is admissible. Sections 79 and 80 of the EAQ 1977 provides evidence of a finding of guilt in a previous criminal trial is admissible as presumptive evidence of the accusedʼs commission of the offence. By implication, all the documentation from the previous trial is allowed as an exception to the hearsay rule. Exceptions to hearsay: informal admissions The rationale for admitting these is that they are against the interest of the maker. An informal admission is some acknowledgment of liability by a party. It can be done by circumstantial inference, e.g. failing to stop at a car crash may implicitly admit liability: Holloway v McFeeters (1956) CLR. An informal admission may only be admitted against the party who made it. It may, controversially, be used as an implied admission in criminal cases where the accused has been proven to lie: Edwards v R (1993) CLR. There is generally a requirement that hte judge identify precisely the lie told by the accused, and the circumstances and events that make it an admission against interest. (There is more on this in a different part of my notes.) Exceptions to hearsay: statements by persons now deceased Statements under this exception are justified following the death of the declarant, as being, under that circumstance, the best form of evidence available. Accordingly, the evidence can only be received if it would have been admissible as testimony, had the declarant been alive to testify. Declarations against the pecuniary or proprietary interests of the maker of the declaration Consistently with the above paragraph, the deceased declarant must have had first hand knowledge regarding the subject matter of the declaration. This exception does not extend to statements made against penal interest: Sussex Peerage Case (1844) 11 Cl & Fin 85. Declarations made in the course of duty where the deceasedʼs statement was made in the course of a duty arising from employment or public office. Dying declarations these statements are admissible only in cases involving criminal charges of unlawful homicide of the declarant. The statement must have been made when the dying victim was under a ʻsettled, hopeless expectation of deathʼ: R v Peel 9

(1860) 175 ER 941, 941. Even then the contents of the statement will only be admitted for the restricted purpose of explaining the circumstances that led to the victimʼs death and identifying the person responsible. The person need not die straight away, but the person must believe they will die immediately: R v Bernadotti (1869). Interestingly, the burden of proof on the admissibility of a dying declaration is always the civil standard, even if borne by the Crown (it is borne by the party seeking to admit the evidence). Section 93B, Evidence Act 1977 (Qld) In cases involving homicide, suicide, concealment of birth, offences endangering life and health, assaults, rape and sexual assaults, a ʻrepresentationʼ (either written / oral / implied from conduct) relating to an ʻasserted factʼ about which the maker of the assertion had personal knowledge may be admitted in evidence as an exception to the hearsay rule if the maker of that representation is either dead,mentally or physically incapable of giving evidence, and one of the following applies, namely that the statement was made: 1. at the time of, or ʻshortly afterʼ the event to which it relates, in circumstances rendering it unlikely that it is a fabrication; 2. in circumstances making it ʻhighly probableʼ that it is reliable; 3. against the interests of the maker at the time when it was made. In R v Raye (2003) it was held a period of one week between an assault and the resulting complaint to the police was sufficiently close in time to allow the statement to be admitted. Section 93B creates three exceptions to the hearsay rule in subsection (2) for statements made by persons who have since deceased. The first two exceptions remind us of the rules regarding res gestae. The first applies a criterion of broad contemporaneity which is linked the unlikelihood of fabrication; and the second applies a criterion of reliability. But these exceptions are alternatives both criteria need not be satisfied. The third exception applies to statements made against interest. In R v Crump [2004] QCA, a witness gave evidence of when a homicide victim had told her her husband had been beating her (the husband was on trial for the murder). This was not admitted under s93b under the first limb because although it was given shortly in time after the event, because the witness did not see any bruises on the victim it was therefore not ʻin circumstances rendering it unlikely that it is a fabricationʼ. Section 93C allows either party to request that the trial judge warn the jury (i.e. only applies when there is a trail by jury) of the potential unreliability of hearsay evidence, of the need for caution in accepting it, and of the weight to be given to it. This was used in, e.g., R v Erasmus [2006] QCA. 10