Evidence Notes

(1)

Contents Contents General Powers

General Powers of tof the Court ... he Court ... 22 COMPETENCE

COMPETENCE & & COMPELLABILITY COMPELLABILITY ... 7... 7 DOCUMENTARY A

DOCUMENTARY AND ND REAL REAL EVIDENCE ...EVIDENCE ... ... 99 EXAMINATION

EXAMINATION OF OF WITNESSES ...WITNESSES ... 11... 11 HEARSAY HEARSAY ... 16... 16 Opinion ... Opinion ... ... 2525 EXCEPTIONS EXCEPTIONS ... 25... 25 Experts Experts... ... 2525 ADMISSIONS ... ADMISSIONS ... ... 3030 TENDENCY TENDENCY ... ... 3333 12.7 12.7 Habit Habit ... ... 3535 12.8

12.8 Similar Similar fact/propensity fact/propensity evidence evidence ... ... 3636 12.9

12.9 Character Character ... ... 3939 (IMPROBABLE)

(IMPROBABLE) COINCIDENCE ...COINCIDENCE ... 45... 45 CHARACTER

CHARACTER & & CREDIBILITY ...CREDIBILITY ... 48... 48 DISCRETION ...

DISCRETION ... ... 5656 PRIVILEGE

PRIVILEGE ... ... 6060 BURDEN

BURDEN AND STANDARD AND STANDARD ... ... 6666 Burden

Burden of of proof proof ... 66... 66 D.

D. Standard Standard of of proof proof ... ... 6868 No

No case case to to answer answer ... ... 7171 Exception

Exception – –admissible on admissible on one ground one ground but inadmissible but inadmissible on another on another ... ... 7171 DNA

(2)

The judge can call witnesses but that is very rare (see Apostilides v Damic) The judge can call witnesses but that is very rare (see Apostilides v Damic) •

• They can also question witnesses (s26) and can They can also question witnesses (s26) and can make legal rulings on evidence as well make legal rulings on evidence as well as direction onas direction on evidence.

evidence. They also sum up and at non They also sum up and at non jury trials they make up the vejury trials they make up the verdict.rdict. 1.) Law is for Judge to decide, facts are for jury

1.) Law is for Judge to decide, facts are for jury 2.) Some facts are for the judge to decide such as: 2.) Some facts are for the judge to decide such as: a) Some ‘reasonableness’ tests;

a) Some ‘reasonableness’ tests;

b) Admissibility questions depending on questions of fact b) Admissibility questions depending on questions of fact

3.) Judge can tell jury how NOT to reason, but must take care in telling jury HOW TO reason to a conclusion of 3.) Judge can tell jury how NOT to reason, but must take care in telling jury HOW TO reason to a conclusion of fact, especially in criminal trials

fact, especially in criminal trials

General Powers of the Court

S11 S11

1)The power of a court to control the

1)The power of a court to control the conduct of a proceeding is conduct of a proceeding is not affected by this not affected by this Act, except so Act, except so far as thisfar as this Act provides otherwise expressly or by

Act provides otherwise expressly or by necessary intendment.necessary intendment.

(2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected. (2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected. •

• The right to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases inThe right to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases in which processes and procedures of the court may

which processes and procedures of the court may be’ converted into ibe’ converted into instruments of injustice or unfairness -nstruments of injustice or unfairness -per Walton v Gardiner and Ridgeway v R

per Walton v Gardiner and Ridgeway v R Court’s Control over questioning of

Court’s Control over questioning of witnesses s26witnesses s26

The court may make such orders as it considers just in relation to: The court may make such orders as it considers just in relation to: (a)the way in which witnesses are to be questioned; and

(a)the way in which witnesses are to be questioned; and

(b)the production and use of documents and things in connection with the questioning of witnesses; and (b)the production and use of documents and things in connection with the questioning of witnesses; and (c)the order in which parties may question a witness; and

(c)the order in which parties may question a witness; and (d)the presence and behaviour of any person in

(d)the presence and behaviour of any person in connection with the questioning of witnesses.connection with the questioning of witnesses. Parties may question witnesses s27

Parties may question witnesses s27 A party may question any

A party may question any witness, except as provided by this Actwitness, except as provided by this Act

Order of examination in chief, cross-examination and re-examination s28 Order of examination in chief, cross-examination and re-examination s28 Unless the court otherwise directs:

Unless the court otherwise directs:

(a)cross-examination of a witness is not to take place before the examination in chief of the witness; and (a)cross-examination of a witness is not to take place before the examination in chief of the witness; and (b)re-examination of a witness is not to take place before all other parties who wish to do so have (b)re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.

examined the witness.

Manner and Form of questioning witnesses and their

Manner and Form of questioning witnesses and their responses s29responses s29

(1)A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as (1)A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

directed by the court.

(2)A witness may give evidence wholly or partly in narrative form if: (2)A witness may give evidence wholly or partly in narrative form if:

(a)the

(a)the party party that that called called the the witness witness has has applied applied to to the the court court for for a a direction direction that that the the witnesswitness give evidence in that form; and

give evidence in that form; and (b)the court so directs.

(3)

(3)Such a direction may include directions about the way in which evidence is to be given in that form. (3)Such a direction may include directions about the way in which evidence is to be given in that form. (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

be given.

Dietrich v R (Right to a fair trial in criminal proceedings) Dietrich v R (Right to a fair trial in criminal proceedings)

Facts: D was unrepresented and on trial for heroin importation - he appealed to the HC, on the ground that he Facts: D was unrepresented and on trial for heroin importation - he appealed to the HC, on the ground that he was an accused charged with a serious offence and so is entitled to council provided at the expense of the was an accused charged with a serious offence and so is entitled to council provided at the expense of the State.

State.

Held: The HC held that there is no positive right to have legal representation but there is a right to a fair trial, Held: The HC held that there is no positive right to have legal representation but there is a right to a fair trial, which may involve legal counsel - BUT, when charged with serious offence & no legal rep., crt should exercise which may involve legal counsel - BUT, when charged with serious offence & no legal rep., crt should exercise its discretion to stay proceedings until legal rep. available (except in exceptional circumstances.)

its discretion to stay proceedings until legal rep. available (except in exceptional circumstances.) •

• NB There is no right to NB There is no right to legal rep., per se, but there is a legal rep., per se, but there is a requirement of fairness and this is irequirement of fairness and this is i mplied in themplied in the availability of legal rep.

availability of legal rep. R v BKK

R v BKK (Fair trial only, not bes(Fair trial only, not best performance posst performance possible)ible)

Facts: BKK was tried in district court in 2000 on 13 counts of sexual offences in relation to his daughter - he Facts: BKK was tried in district court in 2000 on 13 counts of sexual offences in relation to his daughter - he conducted his own defence after being denied legal aid

conducted his own defence after being denied legal aid . Appealed after being convict. Appealed after being convict ed.ed.

Held: Grove J in Ct of Appeal said lack of representation was not unfair after balancing public interest with Held: Grove J in Ct of Appeal said lack of representation was not unfair after balancing public interest with accused financial position, because there was no guara

accused financial position, because there was no guara ntee that BKK would be ntee that BKK would be able to get the necessaryable to get the necessary money if a stay was granted, and in addition the trial had been delayed for 5 years already.

money if a stay was granted, and in addition the trial had been delayed for 5 years already. •

• BKK said he was unwell and could not perform at the best of his ability - Court said that trial requiredBKK said he was unwell and could not perform at the best of his ability - Court said that trial required integrity, not that the accused was performing well.

integrity, not that the accused was performing well. •

• Held that the trial was not unfair.Held that the trial was not unfair. •

• There is an impartial judge in adversarial settingThere is an impartial judge in adversarial setting

RELEVANCE

S55-6.

S55-6. Evidence must be relevant -> rationally effEvidence must be relevant -> rationally eff ect assessment of probability of the existence oect assessment of probability of the existence o f f a fact in issue

a fact in issue



 Facts in issue are : Facts in issue are : the elements of a criminal case OR factual elethe elements of a criminal case OR factual elements of civil casements of civil case Requires a logical connection between fact in issue and evidence -> must increase or decrease Requires a logical connection between fact in issue and evidence -> must increase or decrease probability of fact in issue

probability of fact in issue

Evidence can be relevant to credibility of other evidence or of witness. Evidence can be relevant to credibility of other evidence or of witness. Smith v the Queen:

Smith v the Queen:

The majority held that evidence must

The majority held that evidence must be relevant before being admissible; relied upon Whigmorebe relevant before being admissible; relied upon Whigmore and Thayer -> all facts with rational, probative value are admissible unless some specific rule forbids. and Thayer -> all facts with rational, probative value are admissible unless some specific rule forbids. Kirby J dissented

Kirby J dissented

Evans v The Queen Evans v The Queen Heydon J: relevanc

(4)

relevance” under

relevance” unders135s135 can exclude evidence. Gummow and Hayne JJ determined that can exclude evidence. Gummow and Hayne JJ determined that this asthis as unnecessary and there for

unnecessary and there for ch2.3ch2.3 should not have been relied upon. Kirby should not have been relied upon. Kirby J dissented arguingJ dissented arguing evidence was prejudicial under

evidence was prejudicial under s137.s137.



 _{s 56 says that}_{s 56 says that relevant evidence is admissible except as otherwise provided by the}_{relevant evidence is admissible except as otherwise provided by the}

Act. Act.

Something is relevant if it is relevant either to a collateral or main fact in

Something is relevant if it is relevant either to a collateral or main fact in issue: s 55(2) CEAissue: s 55(2) CEA

""RRELEVANTELEVANT""MEANSMEANS 

 _{that any two facts that are so related to each other that according to the common}_{that any two facts that are so related to each other that according to the common}

course of experience one fact (either taken by itself or in connection with some other course of experience one fact (either taken by itself or in connection with some other facts) indicates the likelihood of the existence of the other fact. (from SG)

facts) indicates the likelihood of the existence of the other fact. (from SG)



 _{that the two facts are so related that the first fact rationally affects the assessment of}_{that the two facts are so related that the first fact rationally affects the assessment of}

the probability of the existence of the second fact: s 55(1) CEA the probability of the existence of the second fact: s 55(1) CEA



 If something is not relevant, it is inadmissible: s 56 CEAIf something is not relevant, it is inadmissible: s 56 CEA 

 _{This is a question of law for the judge}_{This is a question of law for the judge}_–_–_{ie there is no discretion.}_{ie there is no discretion.} 

 _{Evidence may be admissible for one purpose but}_{Evidence may be admissible for one purpose but not for another:}_{not for another: Wilson}_Wilson

The exceptions to the general principle that all relevant evidence is admissible constitute specific rules The exceptions to the general principle that all relevant evidence is admissible constitute specific rules such as the rule against hearsay, the rule against prior inconsistent statements etc.

such as the rule against hearsay, the rule against prior inconsistent statements etc.



 _{They and others, dealt with later}_{They and others, dealt with later in the course, mandate that relevant evidence}_{in the course, mandate that relevant evidence}

nonetheless remain unheard. nonetheless remain unheard.



 _{In turn there are exceptions to each of these exclusionary rules, which will also be}_{In turn there are exceptions to each of these exclusionary rules, which will also be}

examined. examined. s135

s135. General discretion to exclude evidence. General discretion to exclude evidence The court may refuse to

The court may refuse to admit evidence if its probative value admit evidence if its probative value is substantially outweighed byis substantially outweighed by the danger that the evidence

the danger that the evidence might-(a) be unfairly prejudicial to a party; or (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (b) be misleading or confusing; or

(c) cause or result in undue waste of time. (c) cause or result in undue waste of time.

Evidence must be directly or indirectly relevant to a fact in issue (

Evidence must be directly or indirectly relevant to a fact in issue ( Wilson / SmithWilson / Smith))

•

• Circumstantial Circumstantial evidence may be relevant (evidence may be relevant (Plomp v R / Shepherd v RPlomp v R / Shepherd v R))

s55(1) only requires a minimal connection between the evidence and the fact in issue. If the fact s55(1) only requires a minimal connection between the evidence and the fact in issue. If the fact inin issue is made more likely or

issue is made more likely or less likely by the evidence, however slightly, it less likely by the evidence, however slightly, it is relevant evidence.is relevant evidence.

The test is clearly now one of logical relevance (

The test is clearly now one of logical relevance (Smith / Papakosmas;Smith / Papakosmas; butbut cf cf StephensonStephenson), where), where under the common law it was seen as one of legal relevance (or sufficient relevance).

(5)

But, the notion of legal relevance is not lost though because s55 is read

But, the notion of legal relevance is not lost though because s55 is read in conjunction within conjunction with s135s135, the, the general discretion to exclude evidence.

general discretion to exclude evidence. A

ADMISSIBILITY IS THE CONCEPT OF WHETHER EVIDENCE IS TO BE RECEIVEDDMISSIBILITY IS THE CONCEPT OF WHETHER EVIDENCE IS TO BE RECEIVED.. TTHUS IF EVIDENCE IS ADMISSIBLE ITHUS IF EVIDENCE IS ADMISSIBLE IT SHOULD BE RECEIVED AND TAKEN INTO ACCOUNT WHEN DETERMINING THE ISSUES

SHOULD BE RECEIVED AND TAKEN INTO ACCOUNT WHEN DETERMINING THE ISSUES..

It is a common law concept which is not defined in the Evidence Act 1995 (Cth) It is a common law concept which is not defined in the Evidence Act 1995 (Cth) 

 _{To determine whether evidence is admissible, you have to ask}_{To determine whether evidence is admissible, you have to ask 2 questions:}_{2 questions:}

(1)

The evidenceThe evidence must be relevant must be relevant which has been described above; and which has been described above; and if relevantif relevant

(2)

The evidence does not infringe any rule of evidence that would exclude it. (Question of The evidence does not infringe any rule of evidence that would exclude it. (Question of law)

law)



 _{If BOTH rules are satisfied, then the evidence will be admissible}_{If BOTH rules are}_{satisfied, then the evidence will be admissible}_–_–_{this is a question of law for}_{this is a question of law for} the judge to decide

the judge to decide – –there is no discretion.there is no discretion. If evidence is admissible for one purpose it

If evidence is admissible for one purpose it cannot be rejected on the ground tcannot be rejected on the ground t hat it is inadmissible forhat it is inadmissible for some other purposes:

some other purposes: WilsonWilson 

 _{The trial judge may direct a jury which uses they may make of evidence, and for which purposes}_{The trial judge may direct a jury which uses they may make of evidence, and for which purposes} they may not use evidence.

they may not use evidence.

Wilson

Wife killed by husband. Wife killed by husband.

Crown sought to lead evidence re:

Crown sought to lead evidence re: fights between wife and husband.fights between wife and husband. Defence objected to the evidence

Defence objected to the evidence – –trying to prove that the statements of the wife duringtrying to prove that the statements of the wife during arguments (which were relevant to intention) were hearsay.

arguments (which were relevant to intention) were hearsay. Held that the evidence was relevant to show

Held that the evidence was relevant to show how far the relationship had how far the relationship had deteriorated, butdeteriorated, but not relevant to prove that the

not relevant to prove that the statements of the wife were true.statements of the wife were true. Therefore the jury could only

Therefore the jury could only use the statements to understand the nature of the use the statements to understand the nature of the relationship,relationship, and not to prove that the husband in fact wanted to kill the wife.

and not to prove that the husband in fact wanted to kill the wife.

T

THE CONCEPT OF THE WEIGHT OF EVIDENCE REFERS TO THE EXTENT THAT IT SHOULD BE OR MIGHT BE TAKENHE CONCEPT OF THE WEIGHT OF EVIDENCE REFERS TO THE EXTENT THAT IT SHOULD BE OR MIGHT BE TAKEN INTO ACCOUNT IN DECIDING THE ISSUES

INTO ACCOUNT IN DECIDING THE ISSUES – –IE ITS PERSUASIVE INFLUENCEIE ITS PERSUASIVE INFLUENCE..

The weight of evidence which has been admitted and the extent to which it is used is a The weight of evidence which has been admitted and the extent to which it is used is a question of fact for the jury to assess

question of fact for the jury to assess. . If there is no jury then it is uIf there is no jury then it is up to the judge to assessp to the judge to assess..



 _{Key elements to be considered in an assessment of weight.}_{Key elements to be considered in an assessment of weight.}

(1)

CredibilityCredibility – –ie whether the evidence should be believed:ie whether the evidence should be believed:



 _{Was the evidence persuasive?}_{Was the evidence persuasive?} 

 _{This will depend on an}_{This will depend on an assessment of any likelihood that the witness}_{assessment of any likelihood that the witness who gave}_{who gave}

the evidence may have some motive to mi

the evidence may have some motive to misrepresent the facts or may even besrepresent the facts or may even be lying.

lying. This involves an assessmenThis involves an assessment of the credibility of the witness who gave t of the credibility of the witness who gave thethe evidence.

evidence.



 _{Lack of credibility may be deliberate or mistaken:}_{Lack of credibility may be deliberate or mistaken:} 

 _{may be lying;}_{may be lying;} 

 _{may have faulty memory (due to lapse of time);}_{may have faulty memory (due to lapse of time);} 

 _{may not have been wearing glasses and couldn’t see}_{may not have been wearing glasses and couldn’t see properly.}_properly.

(2)

(6)

(3)

Probative valueProbative value – –ie what the evidence logically ie what the evidence logically tends to prove:tends to prove:



 _{What was the value of the evidence given to proving the facts is in issue?}_{What was the value of the evidence given to proving the facts is in issue?} 

 _{Was the evidence given by the}_{Was the evidence given by the witness accurate? Was the witness mistaken?}_{witness accurate? Was the witness mistaken?} 

 _{This depends on an assessment of the accuracy of the powers of perception of}_{This depends on an assessment of the accuracy of the powers of perception of}

the witness and his or her ability to both recall and recount what he or she the witness and his or her ability to both recall and recount what he or she perceived.

perceived.

Wakely and Bartley Wakely and Bartley



 Accused was in possession of heroin allegedly in a shoe in a hotel room in which he wasAccused was in possession of heroin allegedly in a shoe in a hotel room in which he was present

present 

 Issue was whether the accused was in possession of Issue was whether the accused was in possession of heroineheroine 

 Evidence that one of the investigating police who was present at the raid dies of an overdoseEvidence that one of the investigating police who was present at the raid dies of an overdose having ingested drugs including heroine

having ingested drugs including heroine 

 Wanted to cross examine the Wanted to cross examine the remaining detectives about that issue and was preventedremaining detectives about that issue and was prevented 

 Was it a collateral issue only affecting the credit of the deceased police officer?Was it a collateral issue only affecting the credit of the deceased police officer? HELD: High Court

HELD: High Court 

 Investigation by police was a Investigation by police was a relevant issue and cross-exam by other evidence should haverelevant issue and cross-exam by other evidence should have been permitted

been permitted 

 Affected whether or not the Affected whether or not the accused could have been in possession or accused could have been in possession or was in possession of was in possession of heroine on that night

heroine on that night 

 It showed that one of the investigating officers who allegedly found the accused inIt showed that one of the investigating officers who allegedly found the accused in possession of heroine had access to it himself and to other drugs not said to be in the possession of heroine had access to it himself and to other drugs not said to be in the accused’s possession

accused’s possession 

 Also evidence on how reliable the evidence of the police was on finding the accused inAlso evidence on how reliable the evidence of the police was on finding the accused in possession of heroine

possession of heroine 

 Evidence about the possession of a cocktail of drugs by a police offEvidence about the possession of a cocktail of drugs by a police off icer shortly after theicer shortly after the incident was also relevant to the investigation of the offence and the way it was investigated incident was also relevant to the investigation of the offence and the way it was investigated

Goldsmith v Sandilines Goldsmith v Sandilines



 Accident in 1993Accident in 1993 

 G sued S for damages arising out of a road accidentG sued S for damages arising out of a road accident 

 S were police officers in a police car S were police officers in a police car and G said that S who was driving a car breached his dutyand G said that S who was driving a car breached his duty of care in the management and control of a police car and was i

of care in the management and control of a police car and was i nvolved in an accident in thatnvolved in an accident in that accident at the fault of G on 26 June 1993

accident at the fault of G on 26 June 1993 

 S said that he was injured on the 22 June some 4 days before playing indoor cricket in PerthS said that he was injured on the 22 June some 4 days before playing indoor cricket in Perth and wanted to lead evidence that 1

and wanted to lead evidence that 1 – –g had played indoor cricket 2g had played indoor cricket 2 – –G was playing on the 22G was playing on the 22 June and 3

June and 3 – –that he said after he was picked up by S on the 22 that he said after he was picked up by S on the 22 at the indoor cricket groundat the indoor cricket ground that he stuffed his back playing indoor cricket

that he stuffed his back playing indoor cricket HELD: High Court

HELD: High Court 

 Held the evidence was relevant as to Held the evidence was relevant as to whether the injuries that were sustained on the 2whether the injuries that were sustained on the 2 6th6th were sustained by that incident or by the indoor cricket

were sustained by that incident or by the indoor cricket 

 G was cross examined on the fact that he played cricket on the 22nd and he agreed and thatG was cross examined on the fact that he played cricket on the 22nd and he agreed and that it occurred in Perth and was in a particular street

it occurred in Perth and was in a particular street – –Defence counsel had the wrong streetDefence counsel had the wrong street 

 After G was cross examined, the defence called S and raised where the cricket grounds wereAfter G was cross examined, the defence called S and raised where the cricket grounds were –

–and counsel got out of him that it could have been near the street that was the wrongand counsel got out of him that it could have been near the street that was the wrong street

street 

 Plaintiff’s counsel cross examined the defendant and pursued the position of the indoorPlaintiff’s counsel cross examined the defendant and pursued the position of the indoor cricket ground

(7)



 Plaintiff’s counsel wanted to recall G and prove that the street was wrong –Plaintiff’s counsel wanted to recall G and prove that the street was wrong –wanted towanted to reopen

reopen 

 Was trial judge correct in refusing him to raise the position of Was trial judge correct in refusing him to raise the position of the street in rebuttal evidencethe street in rebuttal evidence 

 Is the position of the street the proving that the position of the ground was not whereIs the position of the street the proving that the position of the ground was not where defence counsel where it was

defence counsel where it was – –looking at the fact in issue? Nolooking at the fact in issue? No 

 Got all the evidence that was Got all the evidence that was neededneeded

COMPETENCE &

COMPETENCE & COMPELLABI

COMPELLABILITY

LITY

s12

-s12 - Competence and compellabilityCompetence and compellability (a)

(a) Competency to give evidence is assumed unless specifically excluded by Competency to give evidence is assumed unless specifically excluded by the Actthe Act NB:

NB: A witness is competent if they may lawfully be called to give evidenceA witness is competent if they may lawfully be called to give evidence

(b)

(b) a competent person is compellable to a competent person is compellable to give that evidence (Co-accused not compellable: s17)give that evidence (Co-accused not compellable: s17)

s13(1)

-s13(1) - Incompetent witnesses are persons who (can't be understood or) Incompetent witnesses are persons who (can't be understood or) don't have capacity todon't have capacity to understand questions about a fact in issue (and that capacity cannot be overcome), like:

understand questions about a fact in issue (and that capacity cannot be overcome), like: 

 Accused Accused (legal incompetence) -(legal incompetence) -s17s17 prohibits the accused from being called to give evidenceprohibits the accused from being called to give evidence in chief. But cross examination (in respect of charac

in chief. But cross examination (in respect of charac ter evidence) is permitted underter evidence) is permitted unders112s112 (( Zurita Zurita). Crown may also generally ). Crown may also generally cross examine thecross examine the Accused Accused underunder s27s27 where Counsel callswhere Counsel calls Accused

Accused for evidence in for evidence in chief. chief. (Co-accused not (Co-accused not compellablecompellable unless tried separatelyunless tried separately: s17): s17)



 ChildrenChildren:: BUTBUT for jury direction purposes (Civil/Criminal),for jury direction purposes (Civil/Criminal),s165As165A prevents regardingprevents regarding children's testimony as being unreliable; irrespective of their age

children's testimony as being unreliable; irrespective of their age [HOWEVER:

[HOWEVER: as with jury directions for 'unreliable' adult testimony/evidence (s165), s165A allowsas with jury directions for 'unreliable' adult testimony/evidence (s165), s165A allows parties to apply for jury warning that the child's testimony is 'unreliable' in other aspects (not age) parties to apply for jury warning that the child's testimony is 'unreliable' in other aspects (not age)]]



 Mentally impaired Mentally impaired - may lack capacity to understand or be understood- may lack capacity to understand or be understood



 Deaf and muteDeaf and mute - although s30 and s31 overcomes this by permitting use of interpreters- although s30 and s31 overcomes this by permitting use of interpreters

But

But s13(2)s13(2) recognises that while persons may berecognises that while persons may be incompetent incompetent for one fact in issue, they may befor one fact in issue, they may be competent

competent for other facts in issuefor other facts in issue

s13(3)

s13(3) -- competent competent persons will be deemedpersons will be deemed incompetent to give sworn evidenceincompetent to give sworn evidence if they don't haveif they don't have capacity to understand their obligation to give

capacity to understand their obligation to give truthful evidencetruthful evidence

s13(4) & s13(5)

s13(4) & s13(5) - persons deemedpersons deemed incompetent to give sworn evidenceincompetent to give sworn evidence [under s13(3)above] may give[under s13(3)above] may give unsworn evidence

unsworn evidence where the court advises them about:where the court advises them about:



(8)



 _{their obligation to advise the court when they can't remember or don't know the answer to}_{their obligation to advise the court when they can't remember or don't know the answer to}

a question a question



 _{their obligation to truthfully agree/disagree with statements put forward to them}_{their obligation to truthfully agree/disagree with statements put forward to them}

s13(7)

-s13(7) - Evidence given by witnesses before they die or Evidence given by witnesses before they die or become incompetent is generally admissiblebecome incompetent is generally admissible s21

-s21 - Requirement to give sworn evidence: under oath / Requirement to give sworn evidence: under oath / affirmationaffirmation



 _{A witness giving sworn evidence must take an oath}_{A witness giving sworn evidence must take an oath} _OR_{OR make an affirmation (}_{make an affirmation (choice provided}_{choice provided}

under under s23s23))



 _{A person called merely to produce a document or thing to the court need not take an oath}_{A person called merely to produce a document or thing to the court need not take an oath}

or make an affirmation. or make an affirmation. s24

s24 - Swearing of evidence under oath does not require actual religious belief or understanding of - Swearing of evidence under oath does not require actual religious belief or understanding of nature/consequence of oaths; hence religious texts

nature/consequence of oaths; hence religious texts not required.not required. s24A

s24A - Alternative Oaths: no need to - Alternative Oaths: no need to believe or make references tobelieve or make references to God God OBJECTION ON RIGHTS OF WITNESSES

-OBJECTION ON RIGHTS OF WITNESSES -

CRIMINAL PROCEEDINGS ONLY

s18

-s18 - Family of the accused (spouses, de Family of the accused (spouses, de facto partners, children, parents)facto partners, children, parents) may objectmay object to be ato be a

witness for the prosecution if called to give evidence against or about a dealing in which the accused witness for the prosecution if called to give evidence against or about a dealing in which the accused was involved.

was involved. R v KhanR v Khan NB:

NB: s18s18 applies only to relationships existing at the time of giving evidence. No spousal privilegeapplies only to relationships existing at the time of giving evidence. No spousal privilege existed at common law (HCA in

existed at common law (HCA in Stoddart Stoddart ))

s18(4)

-s18(4) - Court must satisfy itself that accused's family are aware their objection rightsCourt must satisfy itself that accused's family are aware their objection rights s18(3)

-s18(3) - Objection to be made before giving evidence; and judge to decide on 'objection' in jury'sObjection to be made before giving evidence; and judge to decide on 'objection' in jury's absence:

absence: s18(5)s18(5)

18(6)

-18(6) - Family not required to give Family not required to give evidence whereevidence where courtcourt thinks:thinks: (a)

(a) they are likely to be they are likely to be harmed / jeopardizes relationship between accused & familyharmed / jeopardizes relationship between accused & family ANDAND (b)

(b) harm/jeopardized relationship outweighs desire to demand evidenceharm/jeopardized relationship outweighs desire to demand evidence

s18(7)

-s18(7) - to determine subsection 18(6)(b), court should consider (to determine subsection 18(6)(b), court should consider (non-exhaustivenon-exhaustive):): (a)

(a) nature/gravity of offence in questionnature/gravity of offence in question (b)

(b) substance/importance of evidence likely to be given (and weight to be attached to it)substance/importance of evidence likely to be given (and weight to be attached to it) (c)

(c) other avenues to collect required evidence reasonably available (to other avenues to collect required evidence reasonably available (to prosecutor)prosecutor) (d)

(9)

(e)

(e) was the matter disclosed to the fwas the matter disclosed to the family IN-CONFIDENCEamily IN-CONFIDENCE

s18(8)

-s18(8) - prosecutor cannot comment about the objection or its determination and family's failure toprosecutor cannot comment about the objection or its determination and family's failure to give evidence

give evidence

DOCUMENTARY AND REAL EVIDENCE

Prove contents of documents cf

Prove contents of documents cf 2.22.2 of EA however does not refer to admissibilityof EA however does not refer to admissibility Ch 3

Ch 3 does as doesdoes as does s48. S47s48. S47 defines a documentdefines a document Primary evidence are original documents

Primary evidence are original documents

Secondary evidence are copies, recordings, electronic

Secondary evidence are copies, recordings, electronic records etcrecords etc ss 166-169

ss 166-169 reduce the risks of secondary evidencereduce the risks of secondary evidence s193

s193 Discovery powers ameliorate riskDiscovery powers ameliorate risk Butera v DPP

Butera v DPP No oral evidence is required to verify transcript, if there is significant disagreement itNo oral evidence is required to verify transcript, if there is significant disagreement it may be used as an

may be used as an aide memoire.aide memoire. Documents do not prove themselves Documents do not prove themselves

S58 gives Court ability to examine and determine authenticity of documents S58 gives Court ability to examine and determine authenticity of documents The challenges to a litigator in regard to proving documents electronic form are The challenges to a litigator in regard to proving documents electronic form are threefold:

threefold: (a)

(a) the means by which a pthe means by which a party will adduce the evidence, tharty will adduce the evidence, the contents of e contents of which are said to be relevant;

which are said to be relevant; (b)

(b) whether the document whether the document is admissible in the sense tis admissible in the sense that it is not subject tohat it is not subject to the exclusionary rules of the Evidence Act 1995;

the exclusionary rules of the Evidence Act 1995; (c)

(c) the probative the probative value of the value of the evidence.evidence. Sections

Sections7171 andand161161 of theof the Evidence ActEvidence Act examined above facilitate proof of examined above facilitate proof of matters.

matters. The legislature also has facilitated the pThe legislature also has facilitated the proof of contents of documentsroof of contents of documents by

by s48s48 of theof the Evidence Act 1995Evidence Act 1995 Another helpful provision for

Another helpful provision for the management of evidence in document-heavythe management of evidence in document-heavy litigation is

litigation is Section 50Section 50 Proof of voluminous or complex documents as well asProof of voluminous or complex documents as well ass146s146 andands147s147 S149

(10)

GENERAL RULE:

GENERAL RULE:Extrinsic evidenceExtrinsic evidenceISISadmissible - to resolve an ambiguity in a written document but not to cutadmissible - to resolve an ambiguity in a written document but not to cut down or extend plain meaning:

down or extend plain meaning: CodelfaCodelfa

Codelfa Constructions Pty Ltd v State Rail Authority of NSW Codelfa Constructions Pty Ltd v State Rail Authority of NSW -- Extrinsic evidence.Extrinsic evidence.

-- People who come together to make an aPeople who come together to make an a greement in writing and whether evidencegreement in writing and whether evidence other than the written a

other than the written agreement can be used to establish the terms of tgreement can be used to establish the terms of t he writtenhe written agreement.

agreement.

-- Recognised an assumption that if the agreement is Recognised an assumption that if the agreement is reduced to writing it contareduced to writing it conta ins theirins their entire agreement.

entire agreement.

-- Extrinsic evidence of other terms is not Extrinsic evidence of other terms is not acceptable.acceptable. -- per Mason J (with whom Stephen and per Mason J (with whom Stephen and Wilson JJ agreed)Wilson JJ agreed)



 Rebuttable assumption if the parties agreed to terms to be partly in writing and partly oral.Rebuttable assumption if the parties agreed to terms to be partly in writing and partly oral. 

 Can then adduce evidence of oral Can then adduce evidence of oral evidence.evidence. 

 Where cannot establish that the parties intended the agreement to be partly oral and partlyWhere cannot establish that the parties intended the agreement to be partly oral and partly

written in that instance you can get outside evidence if the writing is ambiguous. written in that instance you can get outside evidence if the writing is ambiguous. 

 Can get evidence to clarify what the parties meant by the writing itself.Can get evidence to clarify what the parties meant by the writing itself.

NAB v Rusu

NAB v Rusu although criticized, determined authenticity before relevance. Bryson J rejectiedalthough criticized, determined authenticity before relevance. Bryson J rejectied authenticity was a question of relevance unde

authenticity was a question of relevance unde s58(1)s58(1) he stated that it he stated that it was a was a different questiondifferent question therefore not provisionally relevant under

therefore not provisionally relevant under s57s57 as the document did not identify bank or accountas the document did not identify bank or account holder.

holder.

Lee v Minister for D of Immigration and multicultural affairs held in federal court that court may Lee v Minister for D of Immigration and multicultural affairs held in federal court that court may draw any inference in relation to authenticity -> wide scope of

draw any inference in relation to authenticity -> wide scope of s.55s.55 A similar decision was made in

A similar decision was made in ASIC v Rich 2005 ASIC v Rich 2005 O’mera v Dominican Fathers 2003

O’mera v Dominican Fathers 2003 brought NAB v Rusu into doubt and that the evidence should havebrought NAB v Rusu into doubt and that the evidence should have been rejected under

(11)

EXAMINATION OF WITNESSES

s26

s26 - the Court generally controls:- the Court generally controls: (a)

(a) the way in which witnesses will be questioned (eg leading / non-leading)the way in which witnesses will be questioned (eg leading / non-leading) (b)

(b) production of documents/things relating to production of documents/things relating to witness questioning (eg statements to refreshwitness questioning (eg statements to refresh memory, prior in/consistent statements)

memory, prior in/consistent statements) (c)

(c) which party calls/questions first, second, etc [also see courts discretion inwhich party calls/questions first, second, etc [also see courts discretion in s28s28: regarding: regarding order of conducting Eviden

order of conducting Evidence-in-chief / Cross ce-in-chief / Cross examination / Re eexamination / Re examination]xamination] (d)

(d) persons present (and their behaviour) during the persons present (and their behaviour) during the questioning of witnessesquestioning of witnesses

Eye witness testimony must be given verbally (Butera v DPP 1987) Eye witness testimony must be given verbally (Butera v DPP 1987)

KNEEBONE - Duty of Crown to call a

KNEEBONE - Duty of Crown to call all material witnesses elsell material witnesses else Jones v Dunkel Jones v Dunkel direction soughtdirection sought a.

a. This only allows the court to draw an This only allows the court to draw an inference from the present inference andinference from the present inference and may not be used

may not be used to fill gapsto fill gaps b.

b. May only occur where a party is required to May only occur where a party is required to explain or contradict somethingexplain or contradict something c.

c. Does not apply to cumulative evidenceDoes not apply to cumulative evidence d.

d. Only applies to the calling of witnessesOnly applies to the calling of witnesses e.

e. Exceptional in criminal mattersExceptional in criminal matters Weissensteiner Weissensteiner situationsituation Weissensteiner v R: inconsistent account of

Weissensteiner v R: inconsistent account of wife and child’s disappearance, accused did not givewife and child’s disappearance, accused did not give evidence

evidence – – not an admission, for prosecutor to put to not an admission, for prosecutor to put to proof proof VELEVSKI

VELEVSKI – – an adverse inference may be drawn if a an adverse inference may be drawn if a witness that is expected to be witness that is expected to be called is notcalled is not R v Birks

R v Birks – – an adverse inference may be drawn by an adverse inference may be drawn by the failure to cross examinethe failure to cross examine S.20 EA

S.20 EA – – right to silence may be commented upon but right to silence may be commented upon but may not imply guiltmay not imply guilt Reviving Memory

Reviving Memory IN COURTIN COURT s32:

s32: Attempts to revive memory in courtAttempts to revive memory in court (1)

(1) witness needs leave to revive their memory in witness needs leave to revive their memory in courtcourt (2)

(2) Court to consider witness's ability Court to consider witness's ability to revive memory without document and the relevantto revive memory without document and the relevant portion of document was authored by witness at a time when the incident was fresh in their portion of document was authored by witness at a time when the incident was fresh in their mind or found to be accurate

mind or found to be accurate (3)

(3) with leave, witness may read aloud from documentwith leave, witness may read aloud from document (4)

(4) courtcourtmaymay give other party access to the relevant portion of documentgive other party access to the relevant portion of document s33:

(12)

(1)

(1) Police officer can read from Police officer can read from their statement during Evidence-in-chief wheretheir statement during Evidence-in-chief where (2)

(2) it was made at the time or soon after the incident provided it was signed when made and ait was made at the time or soon after the incident provided it was signed when made and a copy was provided to the

copy was provided to the defendantdefendant

Reviving Memory

Reviving Memory OUT OF COURT (OUT OF COURT (DaSilvaDaSilva)) s34

s34 - Attempts to revive memory out of court- Attempts to revive memory out of court (1)

(1) A party may request the Court to direct their opponent(s witness) to provide documents orA party may request the Court to direct their opponent(s witness) to provide documents or things used to revive their memory out of court; and

things used to revive their memory out of court; and (2)

(2) the court may refuse to admit the evidence if the opponent fails to comply with the court'sthe court may refuse to admit the evidence if the opponent fails to comply with the court's request (without reasonable excuse)

request (without reasonable excuse)

Use of the Document by

Use of the Document by Opposing CounselOpposing Counsel s35

-s35 - tendering/adducing documents 'produced' by opponent/third partytendering/adducing documents 'produced' by opponent/third party (1)

(1) party receiving furnished/inspected documents has no obligation party receiving furnished/inspected documents has no obligation to tender them in evidenceto tender them in evidence (2)

(2) opponent/third party has no right to tender such documents where the party fails to do soopponent/third party has no right to tender such documents where the party fails to do so Cross Examination and Exception to Rule Against

Cross Examination and Exception to Rule Against Prior CONSISTENT StatementsPrior CONSISTENT Statements Common law

Common law: prior consistent statements cannot be used : prior consistent statements cannot be used to strengthen witness testimonyto strengthen witness testimony (Corke v (Corke v Corke and Cook

Corke and Cook ) and such evidence would generally be in breach of ) and such evidence would generally be in breach of s101As101A andand s102s102 (credibility rule)(credibility rule)

s101A

s101A- defines '- defines 'credibility evidencecredibility evidence' as evidence that is relevant ' as evidence that isrelevant only only because it affects a witness's credibility because it affects a witness's credibility (and may sometimes also affect the credibility

(and may sometimes also affect the credibility of other evidence that is rof other evidence that is r endered inadmissible due to hearsayendered inadmissible due to hearsay or tendency/coincidence rules).

or tendency/coincidence rules).

s102

-s102 - 'credibility evidence' about witnesses'credibility evidence' about witnesses is prima facie inadmissibleis prima facie inadmissible (subject to exceptions)(subject to exceptions)

s103

s103 - is an exception to the rule in s102 and allows the prosecution to damage witness credibility byis an exception to the rule in s102 and allows the prosecution to damage witness credibility by introducing a prior inconsistent statement to challenge their testimony (during cross-examination). introducing a prior inconsistent statement to challenge their testimony (during cross-examination).

Although

Althoughs103s103 does not require leave, it requires persuasive arguments which willdoes not require leave, it requires persuasive arguments which will 'substantially''substantially' impact the witness's credibility, such as by showing (

impact the witness's credibility, such as by showing (non-exhaustively non-exhaustively ):): s103(2)(a)

(13)

s103(2)(b)

s103(2)(b) - significant amount of time elapsed since the occurrence of relevant incident/event- significant amount of time elapsed since the occurrence of relevant incident/event

In such situations (subject to leave)

In such situations (subject to leave) s108(3)s108(3) maymay permit a witness to use their prior permit a witness to use their prior consistentconsistent statement:

statement: (a)

(a) to re-establish their credibility; orto re-establish their credibility; or (b)

(b) in attempt to invalidate any express or implied allegations of them fabricating /in attempt to invalidate any express or implied allegations of them fabricating / reconstructing their testimony

reconstructing their testimony

Finality principle

-Finality principle - Generally,Generally, the cross examiner is bound by answers given in respect of questionsthe cross examiner is bound by answers given in respect of questions that solely relate to credibility and cannot later lead contradictory evidence.

that solely relate to credibility and cannot later lead contradictory evidence. s106(1)

-s106(1) - If during cross examination a witness denies facts/assertions relating to their credibility,If during cross examination a witness denies facts/assertions relating to their credibility, then depending on nature/importance of fact/assertion denied, party wanting to lead evidence to then depending on nature/importance of fact/assertion denied, party wanting to lead evidence to rebut such denial

rebut such denial maymay be granted leave.be granted leave. (s106(s106 is anis an exception to theexception to the finality principle finality principle)) s106(2)

-s106(2) - ButButLEAVE NOT REQUIREDLEAVE NOT REQUIRED where evidence being led to show witness:where evidence being led to show witness: (a)

(a) has motive for being biased or untruthful,has motive for being biased or untruthful, (b)

(b) was convicted of an offencewas convicted of an offence (c)

(c) has made prior inconsistent statementshas made prior inconsistent statements (d)

(d) was unable/unlikely to have knowledge of was unable/unlikely to have knowledge of details/matters given as evidencedetails/matters given as evidence (e)

(e) knowingly/recklessly made false representations when obliged to tell knowingly/recklessly made false representations when obliged to tell truthtruth

Principal exceptions are: Principal exceptions are:

1.

1. To establish previous complaint by the victim of a sexual assault.To establish previous complaint by the victim of a sexual assault. 2.

2. To support correct identification of a personTo support correct identification of a person Statutory Exceptions:

Statutory Exceptions: s. 92, 93, 93As. 92, 93, 93A Prior INCONSISTENT Statements Prior INCONSISTENT Statements s43(1)

s43(1) - A witness can be - A witness can be cross examined about an alleged prior cross examined about an alleged prior inconsistent statement even whereinconsistent statement even where the examiner doesn't provide the witness with

the examiner doesn't provide the witness with complete particulars / document of complete particulars / document of their statement.their statement.

s43(2)

s43(2) - where witness doesn't admit to making t- where witness doesn't admit to making t he prior inconsistent statement, the examiner can'the prior inconsistent statement, the examiner can't adduce evidence of the statement

adduce evidence of the statement unlessunless sufficient attempt made to assist witness in sufficient attempt made to assist witness in identifyingidentifying their prior statement

their prior statement ANDAND the examiner draws the witness's attention by the examiner draws the witness's attention by highlighting thehighlighting the inconsistent portion of their statement

inconsistent portion of their statement

BROWNE v DUNNE

BROWNE v DUNNE rule:rule: party seeking to contradict witness testimony must highlight theparty seeking to contradict witness testimony must highlight the contradictory/inconsistent substance of evidence when cross-examining the witness (

(14)

Improper Questioning Improper Questioning s41(3)

-s41(3) - 'Improper questioning' means question(s) or series of 'Improper questioning' means question(s) or series of questions which are:questions which are: (a)

(a) misleading or confusing; ormisleading or confusing; or (b)

(b) unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; orrepetitive; or (c)

(c) put to the witness in a belittling, insulting or otherwise inappropriate tone/manner; orput to the witness in a belittling, insulting or otherwise inappropriate tone/manner; or (d)

(d) has no basis other than has no basis other than a stereotype (about witness's sex, race, culture, ethnicia stereotype (about witness's sex, race, culture, ethnici ty, age,ty, age, mental, intellectual or physical disability)

mental, intellectual or physical disability)

s41(1)

-s41(1) - courtcourt may may disallow improper question(s) put to a witness during cross examination, ordisallow improper question(s) put to a witness during cross examination, or inform witness that it

inform witness that it need not be answered.need not be answered.

s41(2)

-s41(2) - courtcourtmust must disallow improper question(s) put to vulnerable widisallow improper question(s) put to vulnerable wi tnesses during cross-tnesses during cross-examination, or inform witness that it need not be answered,

examination, or inform witness that it need not be answered, unlessunless court is satisfied that thecourt is satisfied that the question needs to be put due to all relevant circumstances of the case.

question needs to be put due to all relevant circumstances of the case.

s41(4)

s41(4) - defines 'vulnerable witnesses' - as persons cognitively impaired/intellectually disabled,- defines 'vulnerable witnesses' - as persons cognitively impaired/intellectually disabled, persons under 18, or other persons who court thinks are 'vulnerable'.

persons under 18, or other persons who court thinks are 'vulnerable'. Unfavourable Witnesses (

Unfavourable Witnesses (R v LeR v Le))

Unfavourable = 'Not Favourable'. Doesn't have to be 'hostile' or 'adverse' to party's case:

Unfavourable = 'Not Favourable'. Doesn't have to be 'hostile' or 'adverse' to party's case: McRaeMcRae

s38(1)

s38(1) - Subject to leave, the party - Subject to leave, the party who called the witness to who called the witness to give evidence-in-chief, can use leadinggive evidence-in-chief, can use leading questions as appropriate as if they were crossexamining the witness about

questions as appropriate as if they were crossexamining the witness about -(a)

(a) the witness's unfavourable statements against the partythe witness's unfavourable statements against the party OROR (b)

(b) information with which witness should be information with which witness should be reasonably familiarreasonably familiarand and court thinks they arecourt thinks they are trying to withhold such information

trying to withhold such information OROR (c)

(c) the witness's prior inconsistent statementthe witness's prior inconsistent statement

s38(2)

s38(2) - does not permit the party - does not permit the party to re-examine an unfavourable witnessto re-examine an unfavourable witness

s38(3)

s38(3) - With leave, the questioning may extend to matters relevant only to credibility (subject to- With leave, the questioning may extend to matters relevant only to credibility (subject to rules regarding admissibility of credibility evidence)

(15)



 _{Relevant to leave is}_{Relevant to leave is::} 

 _{whether notice of intention to}_{whether notice of intention to seek leave was given at the earliest opportunity; and}_{seek leave was given at the earliest opportunity; and} 

 _{the nature of likely questioning of the witness by another party}_{the nature of likely questioning of the witness by another party (}_{( DPP v McRae}_{DPP v McRae))..}

Also consider other

Also consider other discretions/obligatdiscretions/obligations:ions:

s192

s192 (leave subject to certain terms depending on (leave subject to certain terms depending on whether adjournment necessary, avoid unduewhether adjournment necessary, avoid undue delay, unfair prejudice depending on importance of evidence and nature of case)

-delay, unfair prejudice depending on importance of evidence and nature of case) - HoganHogan:: leaveleave should be granted to avoid shifting focus of trial on 'collateral'matters

should be granted to avoid shifting focus of trial on 'collateral'matters

s135

s135 (General discretion to exclude unfairly prejudicial/confusing/misleading evidence, or to avoid(General discretion to exclude unfairly prejudicial/confusing/misleading evidence, or to avoid undue waste of time)

undue waste of time)

s137

(16)

HEARSAY

Controlling the hearsay use

•• First, does the hearsay rule in s 59 apply?

First, does the hearsay rule in s 59 apply?

–

NO: the e

NO: the evidence

vidence is admitte

is admitted for a purpose

d for a purpose other

other

than proof of

than proof of an asserted fact

an asserted fact

•• ‘‘Dual use:

Dual use:’’ the hearsay rule does not apply (s 60)

the hearsay rule does not apply (s 60)

•• BUT, the trial judge may limit the use of

BUT, the trial judge may limit the use of the evidence to

the evidence to

its non-hearsay use (s 136)

–

– YES…

YES…

•• … but the

… but the evide

evidence is adm

nce is admissible

issible unde

under an exce

r an exception to

ption to

the

the hearsay

hearsay rule

rule (see ss

(see ss 62-75, 81-90)

62-75, 81-90)

•• A party can apply for a jury warning that the hearsay use

A party can apply for a jury warning that the hearsay use

of the evidence is unreliable (s 165)

STEP

STEP 1 1 -- Is the "previous representation"Is the "previous representation"11relevant?relevant? [s55] [s55]

Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

proceeding. STEP 2

STEP 2 - Consideration - Consideration of the Hearsay Ruof the Hearsay Rule: [s59] le: [s59] 22 

 Under s59, evidence of a 'previous representation' made by a person is prima facie inadmissibleUnder s59, evidence of a 'previous representation' made by a person is prima facie inadmissible where it is expressly or

where it is expressly or implicitly intendedimplicitly intended33to be used to prove the existence of a factto be used to prove the existence of a fact

[NB:

[NB: the party seeking admission of the 'previous representation' has burden of proof to show that itthe party seeking admission of the 'previous representation' has burden of proof to show that it was not an 'intentional assertion'

was not an 'intentional assertion']] 1.

1. Where "previous representation" is relevant, how will it be used?Where "previous representation" is relevant, how will it be used?

1 1

The Dictionary in Part 1 states that a '

The Dictionary in Part 1 states that a 'Previous representation'Previous representation'is an out-of-court (proceeding) statement,is an out-of-court (proceeding) statement, express or implied from words or conduct (regardless of whether it was 'intended' or eventually

express or implied from words or conduct (regardless of whether it was 'intended' or eventually 'communicated')

'communicated')

2 2

Remember, s 59 only applies to evidence used to prove the truth of what was said (i.e. for a 'hearsay Remember, s 59 only applies to evidence used to prove the truth of what was said (i.e. for a 'hearsay purpose' )

purpose' )

3 3

an implied representation is only hearsay if the person intended to assert the fact (

an implied representation is only hearsay if the person intended to assert the fact (Hannes, Walton, Ratten,Hannes, Walton, Ratten, Immigration Minister v Capitly

(17)

a.

a. Non-hearsay purpose (as 'circumstantial' or 'original' evidence / 'other purpose') -Nonhearsay purpose (as 'circumstantial' or 'original' evidence / 'other purpose') -hence admissible =>Also CHECK STEP 3 after the following:

hence admissible =>Also CHECK STEP 3 after the following:

i.

i. SubramaniamSubramaniam - - the evidence was merelthe evidence was merely being used to prove "y being used to prove "the fact that thethe fact that the 'previous representation' was made

'previous representation' was made" and NOT to prove "" and NOT to prove "the truth in it the truth in it "" [[Representations used as evidence of their effect Representations used as evidence of their effect on another personon another person ]]

ii.

ii. Ratten - "the victims words were not a statement of a fact Ratten - "the victims words were not a statement of a fact – – but together withbut together with her tone of voice, they were relevant evidence of her state of mind"

her tone of voice, they were relevant evidence of her state of mind" [[thethe state of state of mind

mind44 being the other purposebeing the other purpose]]

iii.

iii. WaltonWalton - the child intended to '- the child intended to 'greet his father greet his father ' and NOT to '' and NOT to 'assert or discloseassert or disclose that the person who he spoke with was his father

that the person who he spoke with was his father ''

iv.

iv. Van BeelenVan Beelen - statements used as 'original evidence' where it - statements used as 'original evidence' where it is relevant to proveis relevant to prove that '

that 'the statement was said/madethe statement was said/made' - eg: defamation cases, contracts (' - eg: defamation cases, contracts (Firman,Firman, McRaild

McRaild ))

v.

v. KamlehKamleh: where 'previous representation' used to infer ': where 'previous representation' used to infer ' consciousness of guilt consciousness of guilt ''

vi.

vi. WoonWoon: person's responses/reactions relevant to a : person's responses/reactions relevant to a 'previous representation''previous representation'

vii.

vii. WelshWelsh: a doctor's reliance on 'previous representation' of patient's health: a doctor's reliance on 'previous representation' of patient's health history to prove the basis of the medical advice/treatment given. Factual history to prove the basis of the medical advice/treatment given. Factual foundation of expert opinions (Welsh) e.g. doctor's opinions, valuers, foundation of expert opinions (Welsh) e.g. doctor's opinions, valuers,

accountants, scientists, engineers, technical experts, drug identification experts, accountants, scientists, engineers, technical experts, drug identification experts, etc

etc

viii.

viii. PapakosmasPapakosmas: prior 'consistent' statements were called upon in a trial for: prior 'consistent' statements were called upon in a trial for another purpose - i.e. 'previous representation' admitted to

another purpose - i.e. 'previous representation' admitted to proveprove witness/complianant's credibility. cf

witness/complianant's credibility. cf HannesHannes

ix.

ix. LeeLee: prior 'inconsistent' statements were called upon in a trial for another: prior 'inconsistent' statements were called upon in a trial for another purpose

purpose

b.

b. Hearsay purpose (as 'testimonial' evidence / 'factual purpose') -Hearsay purpose (as 'testimonial' evidence / 'factual purpose') - hence inadmissiblehence inadmissible i.

i. HannesHannes - argued that his 'previous representation' in the document were not- argued that his 'previous representation' in the document were not intended

intended ''to assert the existence of Mark or to assert the existence of Mark or M BoothM Booth' and hence the document' and hence the document was not hearsay and

was not hearsay and hence admissible.hence admissible.

Spigelman CJ: Distinction between '

Spigelman CJ: Distinction between 'intended intended ''55implied assertions andimplied assertions and

''unintended unintended ''66implied assertions. Result: s59 modified implied assertions. Result: s59 modified by inserting words "by inserting words "it canit can

4 4

See Step 4 below - There is now an exception to the hearsay rule in s 66A for contemporaneous

See Step 4 below - There is now an exception to the hearsay rule in s 66A for contemporaneous(ie. ‘at the(ie. ‘at the same time’) representations about own health, sensations, or

(18)

reasonably be supposed

reasonably be supposed " to change the test from requiring '" to change the test from requiring 'subjective intent subjective intent ' ' toto requiring '

requiring 'objective intent objective intent ''

2.

2. Hence four strikes (Hence four strikes (to prove it is "testimonial"to prove it is "testimonial"), and), and it’s outit’s out ((inadmissible => but CHECK STEP 4inadmissible => but CHECK STEP 4 ):): a.

a. A previous representation;A previous representation;WHICHWHICH b.

b. Asserts the existence of a fact;Asserts the existence of a fact; WHICHWHICH c.

c. The person intended to assert;The person intended to assert; AND WHICHAND WHICH d.

d. Is used to prove the asserted fact.Is used to prove the asserted fact.

STEP 3

STEP 3 - s60 'hearsay purpose' use of evidence (except admissions in cr- s60 'hearsay purpose' use of evidence (except admissions in criminal cases)iminal cases) 1.

1. Once a 'previous representation' is admitted,Once a 'previous representation' is admitted, s60(1) allows it to be used for 'hearsay purpose's60(1)allows it to be used for 'hearsay purpose' (i.e. 'hearsay purpose' - factual existence or truth can be inferred from the 'previous

(i.e. 'hearsay purpose' - factual existence or truth can be inferred from the 'previous representation').

representation').

a.

a. s60(1) applies to evidence admitted for 'non-hearsay' purpose (see above list),s60(1) applies to evidence admitted for 'non-hearsay' purpose (see above list),

b.

b. s60(2) also allows admitting evidence that is 'second-hand' or more 'remote' hearsays60(2) also allows admitting evidence that is 'second-hand' or more 'remote' hearsay (including first-hand hearsay 'admissions'/confessions - s81(1) and s82), inserted after (including first-hand hearsay 'admissions'/confessions - s81(1) and s82), inserted after Lee v R

Lee v R expanded the importance of exceptionsexpanded the importance of exceptions

c.

c. but not where the 'admission'/confession relates to a criminal proceeding: s60(3)but not where the 'admission'/confession relates to a criminal proceeding: s60(3) [NB:

[NB: jury direction to exclude evidence on basis of being unreliable under s165jury direction to exclude evidence on basis of being unreliable under s165]]

2.

2. Consider s136 discretion to limit Consider s136 discretion to limit application of s60(1)&(2)application of s60(1)&(2)

The trial judge may exercise discretion under s136 limit the use of the evidence

The trial judge may exercise discretion under s136 limit the use of the evidence77to its 'non-hearsay'to its 'non-hearsay' use where:

use where: 

 the other party may otherwise be 'the other party may otherwise be 'disadvantaged' (disadvantaged' (Roach v PageRoach v Page))



 misleading / confusing evidence misleading / confusing evidence - where the evidence contains 'genuinely disputed,- where the evidence contains 'genuinely disputed, conflicting or unreliable facts' (

conflicting or unreliable facts' (Quick v Stoland Pty Ltd Quick v Stoland Pty Ltd ))

5 5

‘Mark exists’ is necessarily contained in the intention to state that ‘there is a need to take Mark to the ‘Mark exists’ is necessarily contained in the intention to state that ‘there is a need to take Mark to the meeting’

meeting’

6 6

Walton

-Walton -There is generally an ‘There is generally an ‘extreme unlikelihood of concoctionextreme unlikelihood of concoction’ in cases involving '’ in cases involving 'unintended implied unintended implied assertions

assertions' (Mason J). But cf a' (Mason J). But cf approach of Wilson, Dawson and Toohey JJ: the chilpproach of Wilson, Dawson and Toohey JJ: the chil d’s words (Hello Daddy) wered’s words (Hello Daddy) were ‘‘no more than hearsay and must be excluded no more than hearsay and must be excluded ''

7 7

cf s135 - which is the judge's discretion to exclude evidence cf s135 - which is the judge's discretion to exclude evidence