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LITIGATION 2 STUDY NOTES

FINAL EXAM STUDY NOTES


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POLICY-BASED ESSAY CONSIDERATIONS THE PRESUMPTION OF INNOCENCE RELEVANCE: ss 55 and 56 UAE DISCRETIONARY AND MANDATORY EXCLUSIONS: ss 135-137 UAE GRANTING LEAVE AND THE VOIR DIRE: ss 192 and 189 PROOF AND JUDICIAL NOTICE: ss140-142 and 144 THE WITNESS IN COURT: ss 12, 13, 14 and 18 QUESTIONING ONES OWN WITNESS: ss 29, 32 and 37 RELEVANCE AND CREDIBILITY: ss 101A, 102 and 103 DISCREDITING ONES OWN WITNESS: s 38 CROSS-EXAMINATION: ss 42 and 41 THE RULE IN BROWNE v DUNN: s 46 CREDIBILITY AND CROSS-EXAMINATION: ss 101A, 102, 103, 106 THE FINALITY PRINCIPLE AND EXCEPTIONS: ss 106, 43-45 PROHIBITION ON ACCREDITING ONES OWN WITNESS: s 108 RE-EXAMINATION OF PARTYS OWN WITNESS: s 39 RE-OPENING THE PROSECUTIONS CASE HEARSAY: ss 59, 60, 136, 61, 62, 63, 64, 135, 137, 65, 66, 66A, 69, 70-74; 57, 58, 48, 50, 29(4), 189 TENDENCY AND COINCIDENCE EVIDENCE: ss 94, 96-101, 97, 98 CROSS-EXAMINING A DEFENDANT: CREDIBILITY AND/OR CHARACTER: ss 104, 112, 104, 108B CHARACTER EVIDENCE AND JOINT TRIALS: ss 104(6), 110, 111, 192 OPINION EVIDENCE: ss 76, 77, 78, 108C IDENTIFICATION EVIDENCE: ss 113-116 JUDICIAL DIRECTIONS, WARNINGS AND INFORMATION: ss 164, 165, 165B

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1. POLICY-BASED ESSAY CONSIDERATIONS


(a) IMPORTANCE OF RELEVANT EVIDENCE Relevance is about maintaining proper limits on parties. If too much information is excluded from a trial, then the integrity of the verdict is likely to be threatened. (drawn from Gleeson CJs remarks in Goldsmith v Sandilands (2002)190 ALR 370) (b) TESTING EVIDENCE OUTSIDE THE WITNESS BOX There can be a gap between a view, a demonstration and an in-court observation and there is a (blurry) line drawn as to what jurors and judges who act as finders can draw on to interpret evidence. This line relates to the importance attributed by the adversarial process to the notion that parties bring evidence to court and this evident represents the totality of what a jury should consider. In R v Colgan (1958) the accused was charged with unlawful carnal knowledge with an imbecile. The complainant was not called because she was considered incompetent to testify. The court had heard expert evidence regarding the complainants mental impairment. After retiring, the jury sent a message requesting to see the complainant, so that they might assess her mental incapacity. The trial judge refused. On appeal, the Court of Appeal held that the judge should have acceded to the jurys request to view the complainant. (c) THE JURY The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people (Hunter and Cronin, 1995: 120) Section 80 of the Australian Constitution preserves the right to trial by jury for Commonwealth indictable offences. It is a right that cannot be waived: Brown v R (1986). In that case, Deane observed: The requirement that there should be a trial by jury was not merely arbitrary or pointless. It must be inferred that the purpose of the section was to protect the accused- in other words, to provide the accused with a safeguard against the corrupt or over -zealous

prosecutor and against the compliant, biased or eccentric judge. The New Zealand Commission in Juries in Criminal Trials (2001), stated: The essentially anonymous verdict of ordinary citizens chosen at random gives to the process the legitimacy of total independence. In R v Allan (2002) the trial judge gave the following direction against unregulated inclusions in the jury room: It is important that you should not go searching through the exhibits to look for, like Sherlock Holmes, some other evidence that has not been brought into the court room. You must decide this case just on the evidence in the court. That is exceptionally important. You should not speculate about things that are outside the evidence unless they are rational inferences drawn from the evidence its elf. (d) OPENING THE DEFENCE CASE s159, Criminal Procedure Act 1986 limits the defences address to the jury to particular matters: Section 159, Criminal Procedure Act 1986 Opening address to jury by accused person (1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor. (2) Any such opening address is to be limited generally to an address on: (a) the matters disclosed in the prosecutors opening address, including those that are in dispute and those that are not in dispute, and (b) the matters to be raised by the accused person. Psychological research and common sense indicate that the sooner the defence can point out potential weaknesses in the prosecution case and offer its own perspective on disputed facts the better the chance of the finder of fact forming the view that a reasonable doubt of guilt exists. New South Wales provides a statutory right to some form of early defence voice directly after the prosecution opening. Nevertheless, the opening remains fettered by constraints relating to argumentation. The New South Wales Law Reform Commission Report, The Jury in a Criminal Trial (1986): To avoid the disadvantage to the Crown which could arise if the Crown opeming were to be substantially separated from the Crown case, the defence outline (or outlines in the case of multiple accused) should not be lengthy or argumentative. Rather this opening should simply outline the issues and identify those matters not in contention. In R v MM (2004) 145 A Crime R 148, Howie J stated: It is not an opportunity for

defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. (e) PRESUMPTION OF INNOCENCE McHugh J in Dyers v R (2002) (dissenting): If alibi defence raised by the defendant Defendant must satisfy an evidential burden by producing sufficient evidence to prove alibi burden then switches to prosecution to disprove alibi beyond reasonable doubt. Accused persons who make statements before or during a trial may often find that their subsequent silence leaves them open to adverse comments that could not be made if they had remained silentThe prosecution may rely on the accuseds subsequent silence to found an adverse inference that discredits his defence. (f) FAIR TRIAL Protection of fundamental rights: Right to silence Presumption of innocence Ensure trials are conducted according to the fair trial principle Accuseds right to respond to and test case against him/her Prosecutorial burden All of which recognises the power of the state versus that of the accused individual

Hon JJ Spigelman AC (2003): o The practical operation of the principle of a fair trial: The High Court in Dietrich (1992) determined that the absence of legal representation for an accused charged with a serious offence will offend the principle of a fair trial. The fairness of a trial may be affected by incompetence of counsel: R v Birks (1990) The right of an accused to a fair and timely disclosure of the Crown case

and to material held by the Crown, so that all relevant evidence must either be led by the Crown or made available to the defence, is well established. If a decision is made, in the exercise of the prosecutorial discretion, not to call a witness, then the principle of fairness may require the witness to be called by the prosecution for the sole purpose of being cross-examined: r v Apostilides (1984). (g) Feminist analysis A number of United States studies indicate that women litigants and witnesses are accorded less respect than men. In court they are more likely to be addressed informally, spoken to with a condescending tone, be patronised with endearments, receive comments on their appearance and be intimidated and badgered: R Hunter (1996). (h) UNFAIR PREJUDICE Gleeson CJ in Festa v R (2001): Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use McHugh H in Papakosmas v R (1999): it means prejudice which is unfair because there is a real risk that the evidence will be mis used by the jury in some unfair way. The Australian Law Reform Commission Explained (Report No. 26) (1985): By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e. on a basis logically connected with the issues in the case. Thus, evidence that appeals to the fact-finders sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact0finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability tan would otherwise be required. (i) ROLE OF THE JUDGE

Consider issues with adversarial system: pp.758-761 A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judges role in that system is to hold the balance between the contending parties without himself taking part in their disputations Dawson J in Whitehorn v R (1983) 152 CLR 657 at 682.

Whenever the judge interrupts counsel for the accused in the absence of an objection, the impression may be conveyed that the judge was on the side of the prosecution and did not think that the accused had any defence.

It is permissible for a judge to intervene in order to clarify ambiguity in counsels question or a witness answer. However Wood CJ at CL noted in R v Esposito (1998) at 472: once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, he is treading on thin ice.

Consider judges intervention in R v Damic [1982]: p.764.

Judicial instruction to the jury: With respect to the jury, Gaudron and Hayne JJ in Dyers v R (2002) observed: if the judge tells the jury how to find the facts which will found a verdict of guilt, the judge comments on the facts of the case in a way that runs obvious risks of detracting from the jurys role as the tribunal of fact. (j) WITNESS COMPETENCY The New Zealand Law Commission noted that the abolition of competency requirements was in line with the Commissions policy to increase the amount of relevant information available to the finder. It would also ensure that more information regarding the reliability of witnesses testimony would be placed before the court. Where testimony is unhelpful because of incoherence or because communication difficulties cannot be overcome, it may be ruled inadmissible on one of the general exclusionary grounds. To date, the Commissions proposals have not been implemented. R v Brooks (1998) 44 NSWLR 121, Grove J: It is fundamental to our system of trial that a person may not be convicted other than upon sworn evidence and, unless the material emanating from the complainant was available to be deliberated upon by the jury See Lord Edmund-Davies views re: spouses on page: 1180 (k) R v Clearihan

R v Clearihan

These questions will help you focus on what the prosecution has to prove during a criminal trial. 1. 2. 3. 4. 5. 6. What are the elements of the offence in Clearihan? Who has to prove each element of the offence? What is the standard of proof for each element of the offence? Which provision of the Evidence Act talks about standard of proof? What is the problem with eyewitness evidence? Consider all the eyewitness evidence, the doctors report, the victims evidence, the defendants evidence and decide whether all 3 elements of the offence have been proved according to the standard of proof. 7. 8. If you were the Prosecution what evidence would you think about omitting? Has this trial been a waste of time and money? (l) COMPLAINANTS IN SEXUAL ASSAULT MATTERS

Extract from ALRC report (2005) Use of s 41 is another way in which improper cross-examination may be limited in sexual assault proceedings. In R v TA Spigelman CJ found that, in sexual assault matters, it is appropriate for the court to consider the effect of cross-examination and the trial experience upon a complainant when deciding whether s 41 should be invoked. These provisions are designed to prevent cross-examination that is improper and will not unduly hamper the trial techniques of advocates. The Commissions endorse the view of the NSW Adult Sexual Assault Interagency Committee that curbing the use of improper questions does not impede the cross-examination process, it simply respects the rights of the complainant witnesses and ensures the best evidence is received by the courts. (M) SIGNIFICANCE AND ASSESSMENT OF A WITNESS CREDIBILITY Assessing the weight to be given to testimony involves an evaluation of the truthfulness of witnesses as well as an assessment of their powers of observation, perception and memory, and their thoroughness and accuracy in recounting such observations. Loretta Re in Oral v Written Evidence: The Mth of the Impressive Witness (1983) states: credibility of a witness may be assessed from his demeanour, that is to say, his frankness his equivocation or lack of it, and his accuracy on certain crucial facts, all of which may assist in this evaluation. In short, it is claimed that if a person is a good

witness, this fact can be established by those observing him. Role of demeanour and lies State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999), Kirby J: There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the court roomApart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decision maker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Whisprun Pty Ltd v Dixon (2003): To reduce the case to a simple contest of credibility was to fall into the trap of irrationality and the risk of prejudice turning the courts process into one of punishing the respondent for her forensic performance instead of evaluating the objective testimony in the context of all the evidence called at the trial (N) SUBSTANTIAL PROBATIVE VALUE IN S 103 Limiting credibility evidence in cross-examination to matters of substantial probative value is designed to confine evidence on collateral issues to that which will have a genuine bearing on the assessment of the evidence. Many matters can be said to go to a witness credit or discredit, but will not have an impact on the assessment of the veracity and accuracy of that witness evidence. Where the evidence is not of substantial probative value in the assessment of a witness credibility, at best it adds un necessarily to the length of trials. At worst it prejudices the proper assessment of the witness credibility by the tribunal of fact and distracts from the facts in issue to be determined. Section 103 provides a formal means which does not exist at common law appropriately to limit crossexamination. ... (O) THE FINALITY PRINCIPLE The principle is founded on the need to control trials, as stated by Gleeson CJ in Goldsmith v Sandilands (2002): on the desirability of avoiding a multiplicity of issues. It is an example of the laws pragmatism. The adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings . In Toohey v Metropolitan Police Commissioner [1956] AC 595 Lord Pearce said that

many controversies which mightobliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money or mental comprehension available to use them. Exceptions to the principle of finality: McHugh J in Nicholls v R (2005): the courts should now regard that rule as a rule of convenience- a rule of the management of cases- rather than a fixed rule or principle. Once it is recognised that it is a rule of convenience, courts should take a more liberal approach to admitting evidence showing a lack of credit or credibility of a witness than the traditional approach of the common law. Here the interests of justice are likely to be advanced by admitting evidence tendency to destroy the credibility of a witness, courts should hesitate to reject such evidence. (P) THE CREDIBLE WITNESS? Reasons to lie in court In R v Sayers (1984) the judge stated: Just as a villain may be accepted as credible witness so too could a liar. It is history that St Peter lied thrice but few would doubt that he could, if required, have given credible evidence Richard Eggleston (1983) highlights that the relative insignificance of an issue may well persuade a usually honest person to commit perjury. The motivation to lie in court may be totally un-associated with the issues in dispute. A Heaton-Armstrong and D Wolchover (1992) suggest that the way police typically take statements from witnesses may cast doubt on the efficacy of contrasting that statemebt with in-court testimony. This is because a witness police statement may be a compilation of some the witness own views with the interpretations of the police officer. (Q) PROHIBITION AGAINST ACCREDITING ONES OWN WITNESS The rationale for the prohibition against accreditation is that it is generally taken as given that parties will tender witnesses who are credible. For this reason, evidence that simply bolsters a witness credibility where his or her credibility is not being impugned is considered to be irrelevant. (R) HEARSAY EVIDENCE According to R Pattenden (1993) the rationale for the hearsay rule is that: o Prior statements are not usually made under oath or affirmation with the consequent incentive to tell the truth or be prosecuted for perjury

o The witness may have misreported the hearsay statement o The trier of fact cannot evaluate the credibility of the person who made the hearsay statement unless that maker testifies in court, so that their demeanour can be observed o The declarant may have been misinterpreted by the witness who reports the declarants statement. The decision in Lee: At trial Calin = unfav. witness CALINS POLICE STMT was admitted in court HC said that Calins stmt only RELEVANT to his credibility as PIS HC said s60 did not allow Calins stmt of what Lee said to be used for its hearsay (truth) purpose Why? Because Calin cd not have intended to assert the truth of what Lee had said Policy: Calin was probably an accomplice and HC wary of accomplice evidence.

ALRC amendment to section 60: ALRC said HCs interpretation of s60 was contrary to the policy behind s60 Decided to amend s60 to allow it to operate on both first-hand and more remote hearsay Why? Because s60 was primarily enacted to allow the facts relied on by experts to be used as evidence of truth of the facts asserted HCs interpretation meant these facts (if remote hearsay) would be inadmiss for hearsay purpose (S) CHARACTER EVIDENCE Dixon J in Dawson v R (1961): It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not to be inferred from the character and tendencies of the accused. Deane J in Phillips v R (1985): what such evidence may be relevant to the issue of guilt, it must be excluded for reasons of policy and humanity

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A criminal trial that canvasses details of the accuseds misconduct on other occasions may be unduly prolonged: Pfenning v R (1995).

It may be highly prejudicial in the minds of the jury. A study conducted in 1993 which surveyed over 1300 trial judges, accused persons and barristers revealed that 77% of defendants had previous convictions and the most common method for revealing an accuseds bad character is through evidence of previous convictions

The New Zealand Law Commission (1997) highlighted: assessments of character and credibility are frequently made on a superficial basis, and secondly, that evidence which relies on an individuals propensity to behave in a certain way runs the risk of being misleading or, worse, of resulting in an invalid inference of guilt. They therefore vindicate the wariness traditionally shown by the courts towards such evidence

Convicting a defendant based on the previous convictions offends the principle against double jeopardy. o ALRC in (Report No 26) found that the jury may wish to punish the accused for past misdeeds: The more socially unacceptable or unattractive the accused s past behaviour is, the more likely the fact finder is prejudiced

regret matrix: jurors are considered likely to minimise the regret they may feel about wrongly convicting an accused if they have a negative impression of him or her.

Prejudice refers to the undue impact adverse to the accused that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force.

See: Melbourne v R (1999) 198 CLR 1: page: 1312-1313. (T) TENDENCY AND COINCIDENCE EVIDENCE

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(U) CROSS EXAMINING DEFENDANT ON CREDIBILITY OR CHARACTER

(V) OPINION EVIDENCE

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(W) IDENTIFICATION EVIDENCE Mis-identification Based on a photo identification by a rape victim, Ronald Cotton spent 10.5 years in gaol until his release via the Innocence Project (www.innocenceproject.org ) He was convicted of rape and burglary and sentenced to life plus 54 years. DNA evidence resulted in his release. The victim, Jennifer Thompson, experienced subconscious image transference when shown a photo of Ronald Cotton. This means that when she eventually IDd Cotton, she IDd the man in the photo rather than her attacker. *** wrongful convictions due to misidentification eyewitness misidentification: 75% of innocence project cases (239) improper forensic science: 50% of cases false confessions: 22% informant testimony: 18% (source: www.innocenceproject.org/docs/Eyewitness_ID_Report.pdf) Racial mis-identification Research shows that people are less able to recognise faces of a different race than their own due to a phenomenon known as own-race-bias In 53% of wrongful convictions cases involving misidentification, the witness and accused were of different races. Cross-racial misID involved an African-American or Latino defendant in 99% of exonerated cases Race of the eyewitness in cross-racial misIDs: 92% Causasian, 6% Latino, 1% other. Source: www.innocenceproject.org/docs/Eyewitness_ID_Report.pdf They now present talks together on misidentification.

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Improving accuracy: The Innocence Project endorses a range of procedural reforms to improve the accuracy of eyewitness identification. 1. The Double-blind Procedure/ Use of a Blind Administrator: A double-blind lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. 2. Instructions: Instructions are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection.

3. Composing the Lineup: A suspect photograph should be selected that does not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the witness as opposed to their resemblance to the police suspect.

4. Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he has in the identification made.

5. The lineup procedure should be documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.

6. Sequential Presentation of Lineups: presenting lineup members one-by-one (sequentially), rather than all at once (simultaneously) ( to overcome relative judgement process)

Alternatives to ID parades: VIPER = voice identification parade electronic recording What is VIPER? The National VIPER Bureau is a service developed, owned and managed by West Yorkshire Police which is utilised by the UK police to produce video identification (ID) parades. There are over 30 police forces in the UK which rely on the National VIPER Bureau to produce their video ID parades. The system has been in use since 1997 and has been

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successfully and routinely presented at court for many years.

Problems with ID evidence: Event factors: Lighting conditions/depth of field e.g. Correo case Time of year, time of day and weather Distance from subject and angle of vision Obstructions Distractions e.g. presence of violence or danger Distinguishing features of the subject

Witness factors: Familiarity with subject Quality of hearing and vision Effects of drugs or alcohol Ability to cope with stress or fear

(X) JUDICIAL DIRECTIONS, WARNINGS & INFORMATION Problems with Jury warnings

If unreliable evidence is admitted, a warning may be applicable Juries get confused by the number of warnings and their complexity Juries look for hints from the trial judge and may interpret a warning as a message to acquit or convict

some research shows that juries misunderstand and misapply jury warnings (see NSWLRC Consultation Paper 4 (2008) - Jury directions)

other research shows that juries ignore warnings and make decisions based on preexisting biases

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2. THE PRESUMPTION OF INNOCENCE


Evidence Act 1995 Section 17
Competence and compellability: defendants in criminal proceedings (1) This section applies only in a criminal proceeding. (2) A defendant is not competent to give evidence as a witness for the prosecution. (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) 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). The only testimonial incompetency an accused person faces is as a prosecution witness in his or her own trial: s17(2) There is no compulsion on an accused to testify in his or her own criminal trial. This freedom is a necessary corollary of an accuseds right to remain silent. A person is not an associated defendant where: o The person is charged with offences that are unrelated to those faced by the accused; or o The offences charged are related to those faced by the accused but they have been finalised. Policy: A person called as a prosecution witness while facing charges that hae not been finalised could be tempted to tailor their evidence to please prosecution and police authorities, and thus gain a direct advantage in terms of their own outstanding charges. For this reason alone, it is generally desirable for charges to be first finalised prior to calling a prosecution witness. Even where charges have been finalised the evidence of an accomplice may still need close scrutiny.

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Hargraves v R; Stoten v R [2011] HCA 44 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: [at 29] As the Court put thepoint in Robinson, "the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts" (emphasis added). These being the fundamental features of a criminal trial, it follows that the judge's instructions to the jury must accord with them and departure from them would be a miscarriage of justice. [at 41] Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt?

a) SILENCE IN COURT/ ACCUSATORIAL JUSTICE


Evidence Act 1995 Section 20 Comment on failure to give evidence
(1) This section applies only in a criminal proceeding for an indictable offence. (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) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was: (a) the defendant's spouse or de facto partner; or (b) a parent or child of the defendant. (4) However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because: (a) the defendant was guilty of the offence concerned; or (b) the spouse, de facto partner, parent or child believed that the defendant was

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guilty of the offence concerned. (5) If: (a) 2 or more persons are being tried together for an indictable offence; and (b) comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence; the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
That direction is regulated by s 20, Evidence Act: (i) the trial judge may make a comment about the defendants failure to give evidence but that comment must not breach s 20(2); (ii) the prosecution may not make any comment about the defendant s failure to give evidence; (iii) a co-accused may comment on another co-accuseds failure to give evidence.

Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi (2001): It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not on itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill any gaps in the prosecution case; it cannot be used as a makeweight in considering whether the prosecution has proved the accusation beyond reasonable doubt: Weissensteiner v R (1993).

If the accused does not give evidence it is almost always desirable for a trial judge to warn the jury: o That the accuseds silence in court is not evidence against the accused o That it does not constitute an admission by the accused o That it may not be used to fill gaps in evidence tendered by the prosecution o That it may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. o And where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led.

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The focus of s 20 is on prohibiting judicial comment that suggests that the defendant has failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

The jury may ignore judicial comment- but they should be told by the judge that they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow Azzopardi v R (2001) 205 CLR 50

Gaudron, Gummow, Kirby and Hayne JJ: The effect of the sub-section is that the judge, the accused and any co-accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, suggest that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty of the offence charged.

b) THE SOMETIME OBLIGATION TO EXPLAIN


Weissensteiner v R (1993) 178 CLR 217 Mason CJ, Deane and Dawson (Gaudron and McHugh dissenting): In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence. *** The majority judgment in this case refers to Weissensteiner possessing facts peculiarly within his knowledge. In this case, the fact that only the appellant knew what happened while he was on the boat with Baryl and Cack meant that they were facts peculiarly known to him.

c) NOT CALLING A WITNESS: RULE IN JONES v DUNKEL


Adverse comment can sometimes be made on a partys unexplained failure to call a seemingly material witness, document or item of evidence. The Jones v Dunkel direction

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states that inference may be drawn that the evidence, if called, would not have assisted the partys case. However as a result of the High Courts decision in Dyers, and because of the principle that the Crown must call all material witnesses, regardless of whether or not they support the Crown case, it is likely that Jones v Dunkel will only continue to apply to a failure to call a witness in a rare and exceptional case.

d) THE ACCUSEDS RIGHT NOT TO CALL EVIDENCE


Dyers v R (2002) 210 CLR 285 Gaudron and Hayne JJ: As a general rule, a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused.

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3. RELEVANCE
The test of relevance is a threshold consideration in relation to an item of evidence. After relevance is satisfied exclusionary rules are than considered.
Is the evidence relevent? (See Part 3.1) Yes Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.) No Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.) No Does the evidence contravene the rule about evidence of judgments and convictions? (See Part 3.5) No Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence.) No Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.) No Does the evidence contravene the rules about identification evidence? (See Part 3.9.) No Does a privilege apply? (See Part 3.10.) No Yes Yes No

Yes

Yes

THE EVIDENCE IS NOT ADMISSIBLE

Y e s
Yes

Yes

Should a discretion to exclude the evidence be exercised? (See Part 3.11.) Yes No THE EVIDENCE IS ADMISSIBLE

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Evidence Act 1995 Section 55


Relevant evidence (1) The 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 proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence.

Evidence Act 1995 Section 56


Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. A FACT IN ISSUE What is a fact in issue? a fact in issue in a criminal trial is any matter that must be ultimately determined by the jury in order to decide whether or not an accused person is guilty of the offence charged. [It] would generally be an element of the offence charged but might include any other matter that must be determined in order to find the accused criminally liable for that offence. It may include [defences, such as] the issue of mental illness, self defence, or any statutory defences and, in a charge of murder, issues such as provocation and substantial mental impairment ( R v Cornwall [2003] NSWSC 660 at para 8, per Howie J; see also R v Smith (2001) 206 CLR 650). THE CREDIBILITY OF A WITNESS Evidence can be relevant to both a fact in issue and the credibility of a witness If evidence is relevant only to credibility, it is indirectly relevant to a fact in issue because it will affect the weight to be given to the witness evidence (Anderson, Hunter and Williams, p 127). Note the credibility rule under s 102 and exceptions to s 102 (ss 103-110).

THRESHOLD RELEVANCE:
Legal relevance weighs the probative value (or strength of proof) of evidence against other considerations, such as the potential for the evidence to confuse the jury or the danger that the evidence might tie up court time for an inordinate amount of time. For example: R v Stephenson [1976] (p.790)

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s 55 does not incorporate the common law legal relevance test. The Act leaves the legal relevance considerations to the discretions to exclude in ss 135 and 137.

Probative value is defined the Acts dictionary: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

McHugh J in Goldsmith: The facts in issue reflect the material facts that constitute the claimants cause of action- which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts. The facts in issue also include those material facts that provide any justification or excuse for, or a defence to, the cause of action.

COULD RATIONALLY AFFECT e.g. In R v Smith (2001) the polices evidence was not considered relevant as it would not rationally affect the assessment of the probability of a fact, as it was not knowledge beyond what the jury could see for itself.

Evans v R [2007] HCA 59 Gummow, Hayne and Kirby JJ made up the majority in allowing the appeal, but differed on the basis for their conclusions. Gummow and Hayne JJ were in the minority in finding the evidence of the demonstration by Evans to be irrelevant (s 55). Kirby, with Heydon (and Crennan J agreeing with Heydon J) held the demonstration to be relevant. Kirby J was in the minority in finding the demonstration to be unfairly prejudicial (s 137).

Per Gummow and Hayne JJ: [29] Not only was what was done not relevant, doing it cannot be assumed to have had no effect on the jury. Dressing the appellant like the robber may have depreciated his credibility as a witness. ...

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Neal v R [2005] TASSC 70 Neal was convicted of sexually assaulting a child. Evidence at trial referred to the Accuseds sexless marriage. The question on appeal was whether prosecution evidence that Neal had said things about his wife's frigid ity or lack of enthusiasm for sex was relevant (and therefore admissible under ss 55 and 56) to whether he had sexually assaulted a child. By majority, the court held the evidence to be (of minimal) relevant, despite its low probative value and propensity for prejudice, because it went toward motive for seeking sexual gratification outside the marriage. Crawford J: [at 12] In written submissions it was claimed that the challenged evidence created a risk of unfairness because it might have caused the jury to be biased against the appellant, regarding him as a person who was likely to seek sexual gratification elsewhere than in his marriage, but once again, that is merely another way of saying that the evidence carried with it a risk of unfairness because it was relevant. the evidence sought to be excluded by the appellant did not suggest that he was of bad character, nor that he had a propensity to commit crimes of a sexual nature, nor that he was a sexual deviant. If the evidence had any of those characteristics, then it could be said to be more likely to arouse feelings of horror and disgust, which would have unfairly prejudiced the appellant, but the evidence did not fit that category.

Relevance & Timing: applying res gestae principles


The doctrine of res gestae applies at common law and is not directly retained or codified in the uniform Evidence Act. The principle: the close contemporaneity is said to enhance the reliability of statements or conduct because they are likely to be unguarded, ungarnished and spontaneous. The principle operates at common law as a broad inclusionary doctrine impacting all exclusionary rules.

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Gaudron and Kirby JJ in Papakosmas v R (1999) observed: In Ratten v R [1972] [in reference to res gestae doctrine, it was said] that if the drama, leading up to the climaz, has commenced an assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, t ought to be received

Papokosmas v R (1999) 196 CLR 297 The appeal focused on whether trial judge was correct in directing the jury that the evidence of complaints to Ms Ovadia, Ms Stephens and Ms Fahey could be used by the jury in two ways: 1. The fact that she made the complains could enhance the comp lainants credibility as a witness by showing that her actions immediately after the incident were behaviour consistent with her testimony- that she was raped. This is the credibility purpose of the evidence 2. The actual content of the complaints, if accepted by the jury, is evidence that supports the prosecution case that there was no consensual intercourse,. This is the hearsay purpose of the evidence. Gleeson CJ and Hayne J: [at 26] The Act confers on courts a general discretion to refuse to admit evidence in certain circumstances (s135) and it obliges a court, in a criminal proceeding, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant (s 137). Neither of these provisions were invoked on behalf of the appellant in this case. Gaudron and Kirby JJ: [at 49] The common law permits evidence of early complaint in sexual cases to counter an adverse inference that might be drawn with respect to the complainants credit [at 59] In the present case, the statements to Ms Ovadia, Ms Stephens and Ms Fahey were closely contemporaneous with the events alleged by the complainant and were of a kind that might ordinarily be expected if those events occurred. That being so, they rationally bear on the probability of the occurrence of those events and, thus, were admissible as

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evidence of the facts asserted in them.

a) COLLATERAL ISSUES
See Goldsmith v Sandilands (2002) 190 ALR 370: p.803.

b) CIRCUMSTANTIAL EVIDENCE & PROVISIONAL RELEVANCE


Evidence Act 1995 Section 57 Provisional relevance
(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. See for example: Walton v R (1989): p.806.

c) RELATIONSHIP & BACKGROUND EVIDENCE


Example: R v Clark: The admissibility of evidence of L ock and Clarks relationship was in dispute. The prosecution wished to adduce evidence that the relationship was tense and violent and that in the days and weeks preceding Locks disappearance Lock had expressed fear of Clark. Conway v R (2000) 98 FCR 204 The Court: The jury were instructed only that the evidence concerning the coffee incident could be used as relationship evidence, relevant to motive, and that it might also be relevant, in a non-propensity way, as evidence of an act preparatory to murder. There can be no doubt that the evidence concerning the coffee incident threw light upon the relationship between Conway and his wife. It pointed to the existence of a motive on

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his part to have her killed. The evidence was admissible notwithstanding the fact that it may also have had the effect of placing before the jury evidence of the commission of an offence other than that with which the accused was charged. Such evidence was not, for that reason alone excluded.

OLeary v R (1946) 73 CLR 566 The High Court by majority held that this evidence was admissible on the ground that it disclosed a connected series of events which should be considered as one transaction. As Dixon J observed: In my opinion the evidence objected to was admissible, because a connected series of events occurred which should be considered as one transaction

R v (Richard) Adam (1991) 106 A Crim R 510 Case involving a staring argument. The prosecution claimed the evidence of the staring argument was evidence relevant to the state of Richard Adams mind at a time proximate to the killing to be capable of tending to show what Adams state of mind was at the time of the alleged offence. It was also submitted that the evidence was admissible under the principle in OLeary because Adams conduct formed an integral part of a transaction consisting of connected events that included the two melees involving the subsequent attacks on David Carty.

In R v Serratore [2001] the Court of Criminal Appeal held that a five-month gap in time did not bring the evidence outside the OLeary principle.

Direct Evidence

Examples: eyewitness evidence; DNA evidence; recent complaint evidence Capable of directly proving a Fact in Issue according to the test in s 55. Direct Evidence Fact in Issue

Circumstantial

Definition: is evidence which, if accepted, tends to prove a fact from which the

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Evidence -

existence of a fact in issue may be inferred ( Festa v R (2001) 208 CLR 593 per Gleeson CJ). May appear insignificant in isolation often gains its relevance from coexistence with other items of evidence, including other Circumstantial Evidence Under s55, does Circumstantial Evidence rationally affect the assessment of the probability of the existence a fact and is that fact relevant to a FII?

Circumstantial Evidence relevant to FACT Fact in Issue Relationship or background evidence A type of circumstantial evidence. Evidence admitted for the purpose of contextualising other evidence. E.g relationship evidence which reveals the nature of the relationship between a victim/defendant. May be admitted because it is relevant to the Defendants state of mind or the victims fear of the Defendant or Defendants motive. Admitted for a non-tendency purpose.

e.g. R v Clark and Conway v R Evidence admitted under OLeary principle A type of background evidence. Evidence of the conduct of an accused which is part of a series of connected events [and proximate to the alleged offence], to prove the state of mind of the accused is admissible provided that it is relevant (R v OLeary (1946) 73 CLR 566).

Under s55: OLeary evidence Defendants state of mind Fact in Issue From this evidence, can, therefore, infer that the Defendants state of mind continued up to the time of the offence. Evidence admitted under OLeary is not tendency evidence.

e.g. R v (Richard) Adam and R v Serratore

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4. DISCRETIONARY AND MANDATORY EXCLUSIONS


In ss 135-137 of the UAE, the party who wants the discretion exercised bears the burden of proof.

Evidence Act 1995 Section 135


General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time

Evidence Act 1995 Section 136


General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. Section 136 applies to evidence that is admissible for more than one use, but where a particular use may be either unduly prejudicial to a party, or be misleading or confusing to the tribunal of fact. Logically, there is a hierarchy of consideration influencing the courts decisions regarding evidence within the purview of s 136. 1. If appropriate, a trial judge may give a warning under s 165 (for evidence of a kind that may be unreliable) 2. A trial judge may limit (by direction) the use that can be made of evidence: s 136 3. Where a discretionary exclusion under s 135 or 137 is justified.

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Evidence Act 1995 Section 137


Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

WHAT IS UNFAIR PREJUDICE? Gleeson CJ in Festa v R (2001): Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use McHugh H in Papakosmas v R (1999): it means prejudice which is unfair because there is a real risk that the evidence will be mis used by the jury in some unfair way. The Australian Law Reform Commission Explained (Report No. 26) (1985): By risk of unfair prejudice is meant t he danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, i.e. on a basis logically connected with the issues in the case. Thus, evidence that appeals to the fact-finders sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact0finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability tan would otherwise be required.

Evans v R [2007] HCA 59 It was submitted that the evidence lacked probative value and that its reception would be prejudicial. Kirby:

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Even if glanced at for a momentsuch a n image would etch an eidetic imprint on the jurys collective mind. It is an image unfairly prejudicial to the appellant.

That means ensuring that serious potential prejudice to an accused person, by obliging him to dress in court in the presence of the jury as a villain, should not be allowed. It should be disallowed in the clearest of terms.

It follows that the Court of Criminal Appeal erred in failing to hold that any probative value of the evidence which the prosecutor sought to adduce by way of the demonstration was out-weighed by the danger that the evidence might be unfairly prejudicial to the accused.

THE WEIGHING PROCESS McHugh in Pfennig v R: If there is a real risk that the admission of such [similar fact] evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation.

R v Em (2003) NSWCCA 374 [120] Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997). [121] I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002]There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas or to rely upon it on a basis that was logically unconnected to the issues in the case.

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R v Shamouil [2006] NSWCCA 112 Dawood selecting a photograph of the accused from an array of 20 photographs and indicating that he was 100% certain. One month after this selection Dawood withdrew his identification, telling police he had been mistaken. Spigelman CJ: [61] In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, the extent to which the evidence could rationally affect the assessment . The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has probative value, as defined, if it is capable of supporting a verdict of guilty. [64] To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v R (1990) 171 CLR 207 at 275, this is not a permissible basis for enlarging the powers of a trial judge at the expense of the traditional jury function. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137.

R v Mundine [2008] NSWCCA 55 Simpson J: in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: R v Shamouil [2006] NSWCCA 112; What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact or the contribution it might, if accepted, make to that resolution.

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a) PROCEDURAL UNFAIRNESS
It had been argued that the inability to cross-examine and otherwise test the reliability of the unavailable maker of the representation is unfair prejudice. Dyldam Developments P/L v Jones [2008] NSWCA 56 The admission of this evidence now, when the plaintiff had had no time to investigate it gave rise to an issue of procedural fairness ie, the plaintiff claimed he was ambushed by this new evidence. The trial judge excluded the document, despite its high probative value, by use of the discretion in s 135(c). Held : The Court upheld the trial judges ruling. Hodgson: In my opinion also, the primary judge was entitled to give considerable weight to this waste of time in this case, because of the unfortunate medical condition of the plaintiff, the emotional hardship to him, the flagrancy of Dyldam s conduct and the circumstance that delay would make proper investigation of the matter less effective.

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5. GRANTING LEAVE AND THE VOIR DIRE


A court must determine the relative weighting to be given t each consideration in s 192(2):

Evidence Act 1995 Section 192


(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (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. The provisions that engage section 192 are varied, mostly they focus on witness questioning: o Reviving memory in court: s 32 o Leading questions: s 37 o Cross-examining an unfavourable witness: s 38 o Questioning in re-examination beyond matters raised in cross-examination: s 39 o Leave to re-call witness: s 46 o Cross-examining an accused on matters relating solely to credibility: s 104 o Adducing evidence relating solely to credibility in re-examination: s 108 o Cross-examination of accused on character matter: s 112

Evidence Act 1995 Section 189


The voir dire (1) If the determination of a question whether:

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(a) evidence should be admitted (whether in the exercise of a discretion or not); or (b) evidence can be used against a person; or (c) a witness is competent or compellable; 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. (2) If there is a jury, a preliminary question whether: (a) particular evidence is evidence of an admission, or evidence to which section 138 applies; or (b) evidence of an admission, or evidence to which section 138 applies, should be admitted; is to be heard and determined in the jury's absence. (3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant. (4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders. (5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account: (a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant; and (b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and (c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing). (6) Subsection 128(10) does not apply to a hearing to decide a preliminary question. (7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates. (8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless: (a) it is inconsistent with other evidence given by the witness in the proceeding; or (b) the witness has died.

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6. PROOF AND JUDICIAL NOTICE


Evidence Act 1995 Section 140
Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

Evidence Act 1995 Section 141


Criminal proceedings: standard of proof (1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

Evidence Act 1995 Section 142


Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or (b) any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding; and (b) the gravity of the matters alleged in relation to the question.

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Briginshaw v Briginshaw (1938) 60 CLR 336 Where an allegation of a quasi-criminal nature is made against a party in a civil action its existence must be proved unequivocally, strictly or with certainty. Dixon: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether issue has been proved

Neat Holdings Pty Ltd Karajan Holdings Pty Ltd (1992) 110 ALR 449 Mason CJ, Brennen, Deane and Gaudron JJ: Statements to that effectshould be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a curt should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Shepherd v R (1990) 170 CLR: p.1020-1022 Overall the prosecutions evidence was circumstantial and the issue in this appeal was whether prosecution had to prove each item of evidence beyond reasonable doubt. Dawson (Toohey and Gaudron JJ concurring, and Mason CJ expressing general agreement): The prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact every piece of evidence- relied upon to prove an element by inference must itself be proved beyond reasonable doubt.

Granada Tavern v Smith [2008] FCA 646 Heerey J: 94 Applying that approach to the present case, it may be doubted whether the particular

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allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery (Briginshaw) or fraud (Rejfek). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not selfevidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan. While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrates criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.

JUDICIAL NOTICE:
Where it operates, the doctrine of judicial notice allows the court to accept things as facts even though they have not been formally proved.

Evidence Act 1995 Section 144


Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

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7. THE WITNESS IN COURT


competence
Definition: is the capacity to testify, that is, the ability to understand the obligation to tell the truth while giving evidence. if a witness is competent, s/he takes an oath or affirmation (s 21) and give sworn evidence. A witness has a choice to swear or affirm under s 23 and does not have to use a religious text in taking an oath (s 24). s12(a): every person is competent to give evidence. Every person includes children (R v Brooks). Under s 12, competence of a witness is assumed unless it is disputed. Often disputed where witness is a child or has a mental impairment. If a person is competent to give evidence, they are compellable to give evidence: s 12(b), unless ss 15, 16, 17 or 18 apply to the witness. A court must test a witness competency (where it is disputed) before deciding they are not competent (R v Brooks). A person is not competent if s13(1)(a) or (b) apply. Assessment of competency will take place in the absence of the jury by the trial judge who will ask questions of the witness to determine whether s 13(1) applies. if a court is satisfied that a person is not competent to testify, that person can give -

compellability
Definition: when a witness is forced to testify (by way of subpoena). if a person is competent to testify then they are compellable: s 12(b). Exceptions: Judges: under s 16(1) a judge in a proceeding is not competent (and therefore not compellable) to give evidence in those proceedings. In relation to other proceedings in which a judge has presided, he or she is not compellable to give evidence about that proceeding unless the court gives leave: s 16(2). Jurors: under s 16(1) a juror in a proceeding is not competent (and therefore not compellable) to give evidence in those proceedings. However, a juror is competent to give evidence in the proceedings about matters affecting the conduct of the proceedings for example, where jurors have been interfered with. Defendants in criminal proceedings: under s 17(2), a defendant in a criminal proceeding is not competent (and therefore not compellable) to give evidence as a witness for the prosecution. A co-accused in a criminal proceeding: under s 17(3), a coaccused is not compellable to give evidence (either for or against) his/her other co-accused, unless they are being tried separately. Spouses and relatives of the defendant in a criminal proceeding: under s 18, a spouse, de-facto spouse, parent or child of a defendant may object to being required to give evidence as a witness for the prosecution, although they

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unsworn evidence: s 13(4). Section 13 makes it clear that a trial judge must apply s 13(1) first before deciding whether the witness may be able to given unsworn testimony (R v Brooks). An incompetent witness may be able to testify in relation to a specific fact: s 13(2). If a witness gives unsworn testimony, there is no provision under the Evidence Act which requires a warning to be given by the trial judge or a provision which states how much weight the jury can give the evidence. Nonetheless, the defence can request a warning under s 165. -

remain compellable to give evidence for the defence. See the dictionary for definitions of spouse, child, parent and de-facto spouse. The trial judge is required to alert the witness to their right to object under s 18 (s 18(4)). the trial judge must apply the two-stage test in s 18(6): (i) is there a likelihood that harm would or might be caused to the person or to the relationship between the person and the defendant if the person gives evidence; and (ii) will the nature and extent of that harm outweigh the desirability of the evidence being given. The trial judge must taken into account the five matters listed under s 18(7) when applying the above tests (see Khan).

R v Brooks (1998) 44 NSWLR 121: The appellant was convicted on two counts of having sexual intercourse with a child under the age of 10 years and one count of aggravated indecent assault. The trial judge assumed that the complainant was not competent to give sworn evidence and proceeded to apply s 13(2) to determine whether her unsworn evidence might be received. He did not test her competence to give sworn evidence under s 13(1). Grove J (Priestly JA agreeing): pp.1172-1173.

Evidence Act 1995 Section 12


Competence and compellability Except as otherwise provided by this Act: (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Evidence Act 1995 Section 13


Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be

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understood to a question about the fact; and that incapacity cannot be overcome. Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (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. (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. (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. (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: (a) that it is important to tell the truth; and (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 (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. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.

Evidence Act 1995 Section 14


Compellability: reduced capacity A person is not compellable to give evidence on a particular matter if the court is satisfied that: (a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and (b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.

PARTIES SPOUSES AND RELATIVES:


R v Khan: Khan stabbed and killed Mohammad Abas after discovering Abas in bed with his

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wife. She was the only witness. See page: 1180.

Evidence Act 1995 Section 18


Compellability of spouses and others in criminal proceedings generally (1) This section applies only in a criminal proceeding. (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: (a) to give evidence; or (b) to give evidence of a communication between the person and the defendant; as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (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: (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 (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (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: (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection; or (b) the decision of the court in relation to the objection; or (c) the failure of the person to give evidence.

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8. QUESTIONING ONES OWN WITNESS


Evidence Act 1995 Section 26
Court's control over questioning of witnesses The court may make such orders as it considers just in relation to: (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 (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses.

Evidence Act 1995 Section 29


Manner and form of questioning witnesses and their responses (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. (2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative 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 court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

REFRESHING MEMORY
Courts applying the UAE must take into account the factors listed in s 192 when considering granting leave. The common law requires there be contemporaneity between the making or adoption of the note and the subject incident. It means that the aide memoire must have been made when the matters recorded were fresh in the witness memory.

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Under s 32(2)(b) freshness of memory is a relevant consideration to the courts determination to grant leave.

Evidence Act 1995 Section 32


Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Refreshing memory procedure 1. Question witness until memory exhausted 2. Apply for leave under s32(1) 3. Court must apply s32(2) & s192 before giving leave 4. If leave granted, witness reads to themselves a contemporaneous document (eg police stmt) 5. Memory jogged EIC continues 6. Memory not joggedapply for leave under s32(3) 7. Court must apply s192 again 8. If leave granted, witness reads document aloud to court

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9. Document itself is not admissible because it has been read aloud 10. Document must be produced to other side: s32(4)

defining freshness in memory:

Section 32(4) rationale: it would be impossible properly to assess the value of a witness evidence, or to test it in cross-examination, without reference to the original record from which the witness says he speaks (R v Alexander and Taylor [1975])

POLICE OFFICERS AS WITNESSES Departure from the general rules relating to in-court refreshment of memory. Police officers may read from their notes without exhausting their memories or showing a need to refresh their memories. The section requires that the notes be made at the time of or soon after the events to which they refer and that the police officer must sign the statement and give a copy to the accused.

Evidence Act 1995 Section 33


Evidence given by police officers (1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. (2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

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LEADING QUESTIONS:
Evidence Act 1995 Section 37
Leading questions (1) A leading question must not be put to a witness in examination in chief or in reexamination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness's evidence; or (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised knowledge based on the witness's training, study or experience--the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given. (2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties. (3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker. Note: Leading question is defined in the Dictionary.

Maves v Grand Trunk Pacific Railway Co (1913) 14 DLR 70 Beck J: A question is objectionable as leading when it suggests the answer, not when it merely direct the attention of the witness to the subject respecting which he is questioned. So that the general rule is that in examining ones own witnesson material points, one must not lead his own witness There are some exceptions to the rule against leading questions: 1. For the purpose of identifying persons or things, the attention of the witness may be directly pointed to them

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2. Where one witness is called to contradict as to expressions used by the latter, but which he denies having used, he may be asked directly. 3. When circumstances show that the witness is hostile to the examiner- judge may relax the rule. 4. Inability to answer question due to defective memory 5. Witness is unable to answer questions due to the complicated nature of the matter which he is interrogated. Where no objections to leading questions arise, a trial judge will be obliged to prevent leading questions where the interests of justice so require.

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9. RELEVANCE AND CREDIBILITY


Definition of credibility: Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witnesss ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. Credibility pertains to a witness as they are giving evidence in the witness box. It is not the same as character which pertains to a persons reputation, generally speaking.

Evidence can be relevant to: 1) Fact in issue 2) Fact in issue & credibility 3) Credibility only: s 102 applies

Evidence Act 1995 Section 101A


Credibility evidence Credibility evidence , in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

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Adams case held that the UEAs Credibility Rule ( s 102)s scope was only to evidence that was solely relevant to credibility. It did not matter if exclusionary rules prevented the noncredibility use of the evidence; s 102 would apply only on a strict analysis of relevance (as opposed to admissibility).

Evidence Act 1995 Section 102


The credibility rule Credibility evidence about a witness is not admissible. Note 1: Specific exceptions to the credibility rule are as follows: evidence adduced in cross-examination (sections 103 and 104); evidence in rebuttal of denials (section 106); evidence to re-establish credibility (section 108); evidence of persons with specialised knowledge (section 108C); character of accused persons (section 110).

Other provisions of this Act, or of other laws, may operate as further exceptions. Note 2: Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness.

Evidence Act 1995 Section 103


Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

Wakeley v R (1990) 93 ALR 79 this case illustrates the point that cross-examiners should be allowed significant latitude to

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reach their point. Mason CJ, Brennan, Deane, Toohey and McHugh JJ: Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun be securing a witness assent to a preoposition of seeming irrelevance. Even if cross-examination failed to establish any real connection between Hortons ingestion of heroin and the alleged finding of heroin in Wakeleys shoe, the opening up, by cross-examination, of the general conduct of the detectives on the evening before and the early morning of Hortons death may well have thrown some light on the reliability of the entire investigation. It was impossible to say, in advance of the cross-examination which counsel sought to conduct, that the logical connection between a fact which might have been made elicited and the issue to be determined was so slight that the f act is treated as too remote and evidence of it as inadmissible.

Peacock [2008] NSWCCA 264 The two appellants were convicted of the attempted murder of an acquaintance, Shane Baker. The prosecution claimed their motivation for the attempted murder was because Baker had burgled their house. The burglary was an earlier and quite separate incident to the attempted murder. At trial, Baker admitted the burglary, and claimed that he had committed it in the company of one Dale Biddle. Biddle was not called to testify. Subsequent to the trial, Biddle made a statement that he (Biddle) was not involved in the burglary. Per Simpson J (McClellan CJ at CL agreeing): [58] A classic example of evidence relevant to the credibility of a witness is evidence that, on another, unconnected, occasion, that witness had lied on oath. Subject to the restrictions imposed by s 103, and, in a criminal case, s 104, cross-examination of that witness on that subject is permissible; but what used to be called the collateral evidence rule, now s 102, precludes the adducing of such evidence from another source. [59] Biddles evidence, if accepted, would have been capable of casting doubt on

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Bakers account of the thefts in respect of the surrounding detail, and therefore upon the central fact that he alleged. [61] If the appellants could have called him, the Crown could have called Biddle. I have come to the conclusion that Biddles evidence, had he been called, would not have been inadmissible by reason of s 102.

RELEVANCE AND THE CREDIBILITY RULE: HOW SECTIONS 55, 102, 103 AND 135/137 WORK TOGETHER

s 55

RELEVANT EVIDENCE: (i) evidence that relates to fact in issue

Re (i): Identify the fact in issue; Discuss whether there is any logical connection between fact in issue and evidence to satisfy s 55 test; Is the fact in issue more likely with the evidence than without it?

(ii) (iii)

evidence that relates to witness credibility evidence that relates to both

s 102

PROHIBITS the admissibility of evidence that is only relevant to a witnesss credibility; limits evidence that can be elicited during examination in chief.

EXCEPTIONS TO credibility rule: s103 s104: applies specifically to criminal proceedings and x-ex of defendants s106 applies to rebuttals made by other witnesses s108 applies to evidence adduced in re-examination ss108A-108C: special exceptions for certain categories of witness s110 applies to evidence adduced by the defendant re character

s 103

Permits the adducing of credibility evidence during cross-examination if the evidence would substantially affect the assessment of the witness credibility

See Lodhi for an example of how s 103 would permit the adducing of evidence during cross examination that only goes to credibility, if at the outset, it can be said the evidence satisfies s 55.

ss 135/137

Section 135: May exclude evidence that would otherwise be admissible under s 103 if unfairly prejudicial to a party, misleading or confusing or would cause or result in undue waste of time.

Section 137: will exclude prejudicial evidence

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CREDIBILITY AND RELEVANCE: HOW THE SCHEME UNDER PART 3.7 OF THE UEA WORKS IN RELATION TO EVIDENCE THAT IS RELEVANT TO CREDIBILITY
Identify the purpose for which the evidence is to be used (adduced)

RELEVANT TO CREDIBILITY (credibility purpose)

RELEVANT TO FACTS IN ISSUE + CREDIBILITY (dual purpose)

RELEVANT TO FACTS IN ISSUE + CREDIBILITY (dual purpose) both a fact in issue and a witness credibility BUT IS HELD TO BE *INADMISSIBLE to go to the fact in issue (*e.g. because it is hearsay

Where evidence is relevant only to a witness credibility IT IS INADMISSIBLE: (s102)

Where evidence is relevant to Where evidence is relevant to both a fact in issue and a witness credibility IS HELD TO BE ADMISSIBLE to go to the fact in issue (that is, its non-credibility purpose)

evidence & no hearsay exception) UNLESS a credibility exception applies: s103 or s108A or s108B or s108C THEN ALSO ADMISSIBLE FOR ITS CREDIBILITY PURPOSE without needing to find a EVIDENCE ALSO *INADMISSIBLE FOR ITS CREDIBILITY PURPOSE UNLESS a credibility exception applies Examples of evidence that is solely relevant to credibility: conviction for perjury evidence of fraud or other dishonest conduct Example of evidence that is inadmissible to go to the fact in issue but also relevant to cred: Police statement (hearsay evid) which contains a witness prior inconsistent statement (Adam) Because of s101A(b)

credibility exception

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10. DISCREDITING ONES OWN WITNESS


Evidence Act 1995 Section 38
Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note: Part 3.7. The rules about admissibility of evidence relevant only to credibility are set out in

(4) Questioning under this section is to take place before the other parties crossexamine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and (b) the party is a witness in the proceeding.

Policy: the legislative intent of s 38 was to relax the common law approach. ALRC observed that, under the common law requirements relating to hostile witnesses, courts were often

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deprived of important evidence because parties would resist calling witnesses where they were concerned that they may not be able to have them declared hostile.

WHAT IS UNFAVOURABLE? In Adam v R (2001) Gleeson CJ, McHugh, Kirby and Hayne JJ expressed the view obiter that there appears to be much to be said for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without making a genuine attempt to give evidence, is to give evidence unfavourable against their case. It could also include an omission to give evidence that helps the partys case and may include an omission due to genuine lack of memory though in this situation leave might first be sought to lead the witness under s 37 or for the witness to refresh his or her memory under s 32. see: R v Lazano: p.1072-1073

McCall v R [2010] NSWCCA 174 Mr Petrou was described by in the CCA as a reluctant witness [who ... did not respond to a subpoena and came to court after the trial judge had issued a bench warrant for his arrest ... [a] reading ... of his evidence ... makes plain that he was not a credible witness. His denial of a memory of any relevant event, proclaimed lack of knowledge of the geography of the North Shore, his obfuscation and contradictions render his evidence entirely unbelievable [para 10] per McClellan CJ at CL. McClellan CJ at CL: 21 The applicant submitted on the appeal that the evidence of Mr Petrou, which of course was inconsistent with Mr Xs account of the persons who were present at Wollstonecraft, had the potential to cause the jury to conclude that Mr X may not have been telling the truth. It was submitted that a doubt about Mr Xs credibility in relation to who was present at Wollstonecraft could extend to a doubt about his account of the events at the Gap, causing the jury to have a doubt as to whether it was the applicant or Mr X who was responsible for Mr Ljubics death. It was submitted that by allowing the Crown to cross-examine Mr Petrou, with the potential to damage his credibility, the Crown was able to impermissibly bolster the credit of Mr X to the disadvantage of the

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applicant. 26 Every opportunity was offered to counsel to address any problem which had arisen. However, no application was made to have Mr X recalled and counsel was able to cross-examine Mr Petrou. 27 Accordingly I am satisfied that the trial judge was correct in granting the prosecutor leave to cross-examine Mr Petrou and in the circumstances no injustice was occasioned to the applicant. WHEN IS A WITNESS NOT MAKING A GENUINE ATTEMPT TO GIVE EVIDENCE? Section 38(1)(b) is probably most clearly relevant where a witness exhibits selective loss of memory in testifying or it becomes apparent that the witnesses sympathies lie firmly with the other party, making him or her reluctant to give evidence against that party. In Adam v R (2001) 207 CLR 96 the trial judge found that all paragraphs of s 38(1)-(a)(b) and (c) had, in fact, been satisfied. The High Court agreed. The found however, that untruthfulness is not a necessary precondition to the activation of s 38(1)(b). It is witness reluctance to testify to their full ability that is the focus of this section. PRIOR INCONSISTENT STATEMENTS Evidence of a prior inconsistent statement is an unexceptional basis for finding a witness to be unfavourable, Prior inconsistent statements may serve two functions: 1. Court rules the witness testimony is unfavourable 2. Prior inconsistent statement may be proved in front of the jury. Then the statement will have the potential effect of discrediting the witness and, additionally, may be admissible as an exception to the hearsay rule: s 60. Of course, this will not occur if the use to be made of the evidence is limited under s 136. Adam v R (2001) 207 CLR 96 The High Court was required to consider whether the trial judge had erred in granting leave to the Crown to cross-examine its own witness, and in admitting evidence of his prior inconsistent statements to the police; whether the credibility rule precluded the admission of these statements and whether they were properly admitted as evidence of the

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truth of their contents. In determining these questions the High Court also considered whether it was proper for the Crown to call the witness to testify knowing that he was unwilling to do so and in order to place before the jury is prior inconsistent statements. Gleeson CJ, McHugh, Kirby and Hayne JJ: *** As a result of Adams case in 2001, if evidence was relevant to credibility, and also for an additional purpose, namely to assist in proving the facts in issue, s 102 (the Credibility Rule) did not apply. The major difference under the amendment, s 101A, is that the credibility rule will only apply if the statement is inadmissible for its truth (or hearsay) purpose. This requires reconsideration of s 66, which as amended may permit the statement to be admitted. The prosecution successfully argued that his statement was admissible to discredit Sako to show he was not to be believed in the witness box. See conclusions on page 1076.

R v Anyang (Ruling No 1) [2011] VSC 31 18 My conclusion is that leave to cross-examine should be given under s 38(1) and s 38(3) of the Act because Ms Akols evidence is unfavourable to the prosecution, she has not made a genuine attempt to give evidence about matters of which she can be reasonably supposed to have knowledge, and because she has made prior inconsistent statements. Section 38(2) provides that questioning a witness under s 38 is taken to be crossexamination for the purposes of the Act (other than s 39). The party may, therefore, use leading questions in questioning the witness subject to s 42. Where the cross-examination questions relate solely to the credibility of the witness the probative value test must be met under s 103. Before granting leave the court must be satisfied that s 38(1)(a)-(c) applies. Where a party wishes to cross-examine its own witness about a matter that is relevant only to the

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witness credibility, separate leave will need to be obtained: s 38(3). In this case, s 103 needs to be considered. Leave under s 38(1) is discretionary, which means that, in determining whether to grant leave, the court must have regard to the matters in ss 38(3) and 192 and the court should also consider the exercise of its discretion in ss 135-137. Where a court fails to take into account relevant matters in s 192, the exercise of the discretion to grant leave will miscarry: R v Hogan [2001] NSWCCA 292. Following such scrutiny, the application for leave may be granted on such terms as the court thinks fit (s 192(1)) and so the questioning may be restricted to specified issues. Give notice under s38(6) of intention to seek leave to x-x own witness Or application for leave to x-x under s38 if no formal notice given (McCall) In voir dire, court must consider s38(6), s192, ss135 & 137 (Anyang) Section 38 x-x limited to matters under s38(1)(a), (b), (c) or (3), depending on the grounds argued before the trial judge. Court can specify the matters for s38 x-x. Not allowed open slather cross-examination to discredit own witness. Leading questions permitted. S38 x-x usually precedes x-x by opposing party.

Cross examination on credibility under s38(3) s38(3) questions relevant for cred purpose: s55(2) Inadmiss: s102 Admiss if cred exception: s103 test Rebuttal evidence admiss: s106

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11. CROSS-EXAMINATION
LEADING QUESTIONS:
Evidence Act 1995 Section 42
Leading questions (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross-examiner; and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court's power to control leading questions. Note: Leading question is defined in the Dictionary.

Section 42 of the UAE expands the courts powers to disallow leading questions in cross examination. Leading questions assume the existence of a disputed fact are improper in cross-examination as well as examination in-chief. They are improper because they may result in statements being imputed to a witness that he or she never intended to make: Lever & Co v Goodwin Brothers [1887] WN 107 (CA).

IMPROPER QUESTIONS
Evidence Act 1995 Section 41
Improper questions

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(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as adisallowable question ): (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account: (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including: (i) the nature of the proceeding; and (ii) in a criminal proceeding--the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding. (3) A question is not a disallowable question merely because: (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (4) A party may object to a question put to a witness on the ground that it is a disallowable question. (5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195.

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Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 Very hostile cross-examination, in which the witness was shouted at, accused of fabricating evidence, called a bare faced liar, accused of tailoring his answers to suit the case, accused of giving a dishonest answer. On appeal, Reynolds JA found that the cross-examination produced no results on matters of substance and was not foolwed up by evidence.

Campbell v R 1993 (unreported) Malcolm CJ: It is not permissible to as a witness if he has been guilty of some conduct unless he has reliable information to warrant the suggestion which the question conveys. See Barristers Rules in SM page 40-41.

AMBIT OF QUESTIONING
The ambit of questioning is controlled at the most fundamental level by relevance. Wakeley v R (1990) 93 ALR 79 Mason CJ, Brennan, Deane, Toohey and McHugh JJ: This [is not] any general test of relevance which a trial judge is able to apply in deciding at the start of a cross examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross examination be contained within reasonable limits, a judge should allow counsel some leeway in cross examination in order that counsel may perform the duty, where counsels instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and Austin and Motor co Ltd [1935] AC 346 said: Cross examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.

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12. THE RULE IN BROWNE V DUNN


Where a party intends to contradict or challenge the testimony of an opposing partys witness, the party should put the witness on notice that his or her account will be challenged an give notice of the substance of that challenge: Browne v Dunn (1894) 6 R 67. R v Birks (1990) 19 NSWLR 677 Gleeson CJ: Lord Herschell LC said: Lord Herschell in Browne v Dunn said: Where it is intended to suggest that a witness is not speaking the truth on a particular point, [counsel must]direct his attention to the fact by some questions put in cross examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do id such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.

MWJ v R (2005) 222 ALR 436 The following observations show an important limitation of the Browne v Dunn obligations for defendants:

Gummow, Kirby, Callinan JJ:


-

[at 38] The rule is essentially that a party is obliged to give appropriate notice to the other
party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.

In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event

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the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution.

R v Birks makes clear the consequences of breaching the rule in Browne and Dunn include: o Preventing the party in breach from suggesting in his or her closing address that the witness testimony should be disbelieved on those points (at 690) o Permitting cross examination of a witness whose evidence breaches the rule to suggest that that evidence is a recent invention and/or inconsistent with instructions to counsel (which are taken to be in accordance with the earlier failure to cross examine). Comment may also be made to this effect, that is, that the testimony is a recent invention and thus should be disbelieved R v Robinson [1977] o There will be no breach of the rule if the witness has prior notice that his or her account will be challenged and of the basis on which this will occur: Flower & Hart (A Firm) v White Industries (Qld) Pty Ltd confirmed in Hart v FCT [2003] FCAFC 105.

IF RULE OF BROWNE V DUNN IS BREACHED, WITNESS MAY BE RECALLED AS PER S 46:

Evidence Act 1995 Section 101A


Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

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13. CREDIBILITY AND CROSS-EXAMINATION


Evidence Act 1995 Section 101A
Credibility evidence Credibility evidence , in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

Evidence Act 1995 Section 102


The credibility rule Credibility evidence about a witness is not admissible. Note 1: Specific exceptions to the credibility rule are as follows: evidence adduced in cross-examination (sections 103 and 104); evidence in rebuttal of denials (section 106); evidence to re-establish credibility (section 108); evidence of persons with specialised knowledge (section 108C); character of accused persons (section 110).

Other provisions of this Act, or of other laws, may operate as further exceptions. Note 2: Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness.

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Evidence Act 1995 Section 103


Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

Evidence Act 1995 Section 106


Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness; and (ii) the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence. (2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. Note: evidence is only considered under s 106 if it is within ss 101A and 102. Leave considerations are subject to s 192.

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APPLICATION OF S 103: SUBSTANTIAL PROBATIVE VALUE R v Lodhi [2006] NSWSC 670 Whealy J: 18 It seems to me that before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot be determined adequately without regard to it. If the probative value of the evidence can be any less than this, there does not appear to me to be any real distinction between the terms "significant probative value" and "substantial probative value" as they are used in the Act. 18 It seems to me that before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot be determined adequately without regard to it. If the probative value of the evidence can be any less than this, there does not appear to me to be any real distinction between the terms "significant probative value" and "substantial probative value" as they are used in the Act. 21 There are perhaps two other matters that might have a relevance, although I do not think that they do in the present matter. First, one always needs to bear in mind the provisions of ss 135 and 137 of the Evidence Act. 28 I think that credibility is very much in issue in this trial and the question which arises is: Does the fact that the accused has told a lie, if that be the fact, about his work experience in the written document I have identified carry with it the type of probative value that I have identified as being necessary under s 103? For the reasons I have given, I conclude that it does, although I should say that it perhaps passes that hurdle, by a relatively small margin. I am prepared to allow the Crown to ask the question. Crowns question allowed. See R v Burns [2003] prior convictions and credibility: p.1142.

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Cross-examination on previous inconsistent statement x-x questions re Previous inconsistent statement Inadmiss: s102 s103 test: admiss if the qus substantially affect witness cred s106: can adduce rebuttal evid from another source if witness denies etc the content of the question

Section 103 permits cross examination on matters solely relating to credibility if the evidence has substantial probative value (exception to rule in s 102)

In determining whether the evidence has substantial probative value the court must have regard to whether the evidence tends to prove that the witness knowingly or recklessly gave false evidence when under an obligation to tell the truth and to the period of time that has elapsed since the acts or events to which the evidence relates occurred: s 103(2)

Evidence has substantial probative value for the purpose of s 103: o Bias and a motive to lie have been accepted as satisfying s 103 standard. In R v Uhrig Hunt CJ stated: A motive to lie where it does exist is a very relevant factor in judging a witnesse credit. IT will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by s 103 of the Evidence Act for admissibility o The inherent implausibility of a witness account. For example in Leung v R [2003] the appellant was questioned about false travel documentation, passports that he had used to gain entry to Australia and thereafter to establish a false identity for himself in Australia.

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o A witness incapacity to observe or remember matters about which he or she has testified would also comprise proper matters for cross examination under s 103 o Prior inconsistent statements, equivocal or evasive answers and false representations made on earlier occasions may also qualify depending upon their subject matter and subject also to the consideration in s 103(2)(b) relating to the period of time that has elapsed since they were made. See prior convictions and misconduct: p.1131. ITEM OF EVIDENCE can be relevant for credibility purpose: s55(2) Inadmiss: s102 Admiss if cred exception: s103 test Rebuttal evidence admiss: s106

cross-examination on credibility generally cross examination questions relevant to credibility s102 (inadmiss) s103 test (Lodhi) finality principle applies s106 applies (if witness denies) (exception to finality principle)

1. if cross-examining on previous inconsistent statement, must establish the previous inconsistent statement is a previous inconsistent statement 2. must comply with s43 procedure (Aslett;Copmanhurst) 3. witness denies etc 4. then adduce evid of previous inconsistent statement from another source

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14. THE FINALITY PRINCIPLE AND ITS EXCEPTIONS


THE FINALITY PRINCIPLE
The finality principle prevents a party from leading evidence for the sole purpose of discrediting a previous witness. The finality principle merely prevents evidence being adduced from additional sources on matters solely relevant to credibility. The finality principle will also prevent a document or a tape being admitted into evidence where its contents are relevant only to a witness credit: R v Bragg (1956).

Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 The issue on appeal concerned whether Sheridons testimony when to a fact in issue or merely to Donellans credit as a witness. By majority, the court held that Sheridans testimony went (at best) only to Donellans credit. Evatt J: Remoteness, like relevance involves considerations of degree. But the trial judge must exclude the evidence in contradiction at the very point where the relationship has become too remote. For full extract see page 1133-1134.

In Goldsmith v Sandilands (police men, negligent driving case) (2002)- the High Court held unanimously that the evidence of the location of the indoor cricket centre was collateral to the facts in issue as being relevant only to the credibility of the first respondents evidence and, therefore, had been properly excluded at first instance.

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Nicholls v R (20050 HCA 1 Davis had told Ross that the police had told him what to say and that he was going to lie in court in order to secure the plea deal they offered him. The admissibility of this evidence depended upon whether it was excluded by the collateral evidence rule and if so whether it was, never theless, admissible under the bias or corruption exceptions to that rule or some development of them. Gummow and Callinan JJ: McHugh said in Goldsmith: The practice of the common law courts has been to admit evidence that shows that a witness did not have an opportunity to make the observationso ordinarily a party may contradict an opposing witness evidence concerning the time, place and lighting of, and distance from, the scene of an event, if the event is itself relevant. See full extract on pages 1137-1140.

EXCEPTIONS TO THE FINALITY PRINCIPLE


McHugh in Goldsmith v Sandilands outlined the common law exceptions to the principle on pages 1142-1143. See section 106 of the UAE. Section 106 requires that the witness in respect of whom the evidence is tendered must have denied its substance. This necessitates the cross-examination of the witness about the substance of the evidence and this in turn requires that the evidence satisfy the substantial probative value test in s 103.

BIAS, INTEREST, MOTIVE OR CORRUPTION


-

See R v Abebe and Mulugeta (1994) [girlfriend threatening accused due to bias] page 1145-46. Wigmore (1970) defines the following (cited in Nicholls v R by Hayne and Heydon JJ): o Bias: in the sense of hostility or prejudice against one party personally or of favour to the other personally o Interest: the specific inclination apt to be produced by

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the relation between the witness and the cause at issue in the litigation o Corruption: the conscious false intent which is to be inferred from giving or taking a bribe or from expressions of a general unscrupulousness in relation to the case. In Nicholls v R (per Heydon and Hayne JJ with who,e Gleeson CJ, Gummow, Callinan and Kirby JJ agreed): According to Ross account of what Davis said, the police were not offering a bribe in the form of money, but something even more valuable- a measure of liberty. That offer could have been seen by the jury as a means of stimulating in Davis a willingness to obstruct the discovery of truth by manufacturing false testimony. It was therefore sufficient to bring Ross evidence within the corruption exception to the collateral evidence rule. The court in Nicholls nevertheless declined to admit the evidence as the appellants had failed to lay the foundations for its admission: That is, the precise statements comprising the evidence, the occasions and circumstances in which they were made and the person to whom they were made were not particularised sufficiently to enable the witness to identify them and so to admit, deny or explain the evidence. Policy reasons for this foundation: ensures fairness towards the challenged witness in giving that witness an opportunity to explain what is put by the cross-examiner. Secondly it reduces surprise[and] enables that counsel to prepare to deal with the rebutting evidence to be called by the other side [at 282].

PRIOR CONVICTIONS

Statute permits a witness prior convictions to be proved if the

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witness denies them.

PRIOR

INCONSISTENT -

See sections 43-45 of the UAE below. Proof of the inconsistencies is simply a matter of putting the earlier statement and, if the witness does not admit the statement, calling a person (or tendering a document) to prove the prior statement. In some cases, however, the witness may be able to explain away the apparent contradictions or resist authorship of the earlier statement.

STATEMENTS

Under section 43 the witness may be cross-examined about a prior inconsistent statement without full particulars of that statement being given to the witness or, where the statement is in a document, without the witness being shown the document.

The cross examiner may not adduce evidence of it from another source unless the witness has been sufficiently informed of the circumstances of its making to enable him or her to identify the statement. The witness attention must also be drawn to those aspects of the statement that are inconsistent with his or her testimony.

Prior representations may be written, verbal or by conduct. It does not need to be relevant to the fact in issue, it must only be inconsistent with the witness testimony in court.

If a representation touches on a relevant fact in issue, it will not be caught by the s 102 rule and will not need to resort to s 105: Adam v R (2001). HOWEVER

If a witness inconsistent representations impact only on his or her credibility, they will be caught by s 102 and so will need to satisfy s 103 before they can be made the subject of crossexamination.

See below for Copmanhurst Shire Council.

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OTHER

INCONSISTENT -

See section 44 below. The rule in the Queens case applied with respect to the written statements of another that have been adopted or verified by the witness. Under section 44: o It applies to oral and written statements of another o the witness can be compelled to answer any questions only if the statements are admissible and either have been or will be tendered in evidence. o It does not prescribe that it must be shown to the witness before cross-examination.

STATEMENTS

In this situation, the cross-examiner can put the document in the witness hands and ask if, having read it the witness still adheres to his or her testimony.

UNABLE TO BE AWARE -

S 106(d): has been interpreted broadly as permitting evidence of a psychiatric report to be admitted indicating that the witness was histrionic and dependent and prone to lying because this tended to show that the witness did not know the truth and would not want to know it: R v Souleyman (1996)

It has not been held to apply to evidence relating to a witness inability to recall: R v PLV (2001) 51 NSWLR 736.

PERJURY

Section 106(e): this exception appears to be potentially very broad in that it appears to permit proof that a witness has lied in cross-examination in any proceedings- either the current proceedings or prior proceedings. The witness must deny the lie.

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Evidence Act 1995 Section 43


Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness; or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

Evidence Act 1995 Section 44


Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. (2) A cross-examiner may question a witness about the representation and its contents if: (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (a) the document must be produced to the witness; (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced--the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents; (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given; (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification.

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Evidence Act 1995 Section 45


Production of documents (1) This section applies if a party is cross-examining or has cross-examined a witness about: (a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or (b) a previous representation alleged to have been made by another person that is recorded in a document. (2) If the court so orders or if another party so requires, the party must produce: (a) the document; or (b) such evidence of the contents of the document as is available to the party; to the court or to that other party. (3) The court may: (a) examine a document or evidence that has been so produced; and (b) give directions as to its use; and (c) admit it even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Copmanhurst Shire Council v Watt [2005] NSWCA 245 [33] the judge ruled that evidence to that effect would be admissible because, contrary to the appellants submission, what Constable Carroll said t o Mr McNabb would be a prior inconsistent statement and in the judges view Constable Carroll had denied its substance. [36] s 106(c) of the Act provided that the credibility rule does not apply to evidence that tends to prove that a witness has made a prior inconsistent statement, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.

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Evidence Act 1995 Section 106


Exception: rebutting denials by other evidence (2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

Evidence Act 1995 Section 108A


Admissibility of evidence of credibility of person who has made a previous representation (1) If: (a) evidence of a previous representation has been admitted in a proceeding; and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

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15. PROHIBITION ON ACCREDITING ONES OWN WITNSS


Not permitted to accredit own witness except permitted to respond in re-examination to any credit impeachment made in cross examination. The UAE defines credibility: Credibility of a person who has made a representation: credibility of the representation and includes the persons ability to observe or remember facts and events about which the person made the representation. Credibility of a witness: credibility of any or all of the evidence of the witness, and includes the witness ability to observe or remember facts about which the witness has given, or is giving or is to give, evidence.

Evidence Act 1995 Section 108


Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.

Note: 108 will only apply if the evidence is admissible only for its credibility purpose. It could
have relevance to a fact in issue as well as credibility, but it will only attract s 102 and 108 if it is inadmissible for its fact in issue relevance.

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The leave of the trial judge to adduce evidence under s 108(1) is not required, but s 39(a) subject to s 39(b) sets limits on the evidence adduced under this provision.

In order to adduce a prior consistent statement- must get leave of the court as per s 192and the judge must have regard to the factors in s 192(2). R v DJT [1999] NSWCCA 22

Complainant did not report offence to police until 12 years after the offence. In cross-examination it was put to the complainant that she had fabricated her allegations in order to obtain victims compensation.

KNP v R [2006] NWCCA 213 This appeal relates to a sexual assault trial in which hearsay complaint evidence is admitted as a prior consistent statement under s 108 (that is, as admissible solely to credibility). McClellan CJ at CL: [31] In these circumstances I am satisfied that it was appropriate for his Honour to allow the prosecution to adduce the evidence of PS to relevantly re-establish the complainants credit. It was not unfair to the appellant within the meaning of s 192(2)(b). Appeal against PS evidence dismissed

R v Martin (1996) 86 A Crim R 198 Crown witness, Emily F testified that Martin had told her that hed knocked his fathers head. Counsel for the accused suggested she fabricated her evidence because she was having an alleged sexual relationship with the accused and didnt want her partner to know Issue was whether the testimony of two witnesses she told about this was admissible after her credibility was challenged in cross-examination.

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Doyle CJ (Debelle J agreeing): To any reasonable person proof that Ms F repeated the alleged admissions before she could have known about the death of the deceased from any other source other than the killer was relevant to rebut a suggestion that she had fabricated the alleged admissions after hearing of the death from a source other than the killer. Relevant evidence was admissible, however re-trial ordered as the trial judge erred in his directions to the jury.

ACCREDITING OWN WITNESS


Evidence or questions to accredit own witness relevant for credibility purpose: s55(2) Prohibited: s102 Permissible: if s108(3)(b) applies during re-exam or EIC (s192) Previous Consistent Statement admissible to rebut a previous inconsistent statement or suggestion of lying/bolsters credibility of witness

PRIOR CONSISTENT STATEMENTS: DIFFERENCE PURPOSES


Papakosmos Prior Consistent Statement (immediate complaint) s55 FII & credibility R v DJT and R v KNP Prior Consistent Statement (delayed or contemporaneous complaint) s55 credibility only

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16. RE-EXAMINATION OF PARTYS OWN WITNESS


Evidence Act 1995 Section 39
Limits on re-examination On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave.

Prohibitions on leading questions and credit impeachment still apply during reexamination.

Re-examination is only permitted: o To clarify ambiguities o Enable a witness to explain or qualify an issue which emerged during crossexamination o To re-establish a witness credibility which has been damaged in crossexamination

There can be no new issues in re-examination without the leave of the court: see R v Szach (1980). The court must consider matters in s 192 when determining whether to grant such leave.

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17. RE-OPENING THE PROSECUTION CASE


If the Crown had no basis for foreseeing the need for such evidence; if that need only became apparent during the defence case, then the trial judge may exercise his or her discretion to permit evidence in rebuttal. For example, re-opening to adduce rebuttal evidence will be permissible (subject to judicial discretion) where the Crown had no basis in its case in chief for leading evidence regarding the accuseds character but the accused puts character in issue in his or her own case. R v Chin (1985) 157 CLR 671 The issue was whether the Crown could re-open to tender to prove that Chin and Choo had included the same telephone number in their visa applications- thus rebutting their evidence that they were complete strangers. The Crown appealed to the High Court. Dawson J: The discretion isto be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted t splits its case. The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. The tendency of the evidence was to establish a connection between Choo and Chin and was thought sufficient to require Chin to be recalled in order to provide an explanation of how Choo came to be in possession of the telephone number. This inevitably highlighted in an unfair way evidence which would not have received undue emphasis had it been led during the course of the prosecution case. The prosecution should not have been allowe to tender Choos visa application form after the cloase of the cases for the defence. The trial of Chin miscarried in m view, as a result of the document being admitted by way of reply.

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18. HEARSAY
To constitute hearsay, evidence must have the following attributes: o It must be a previous (out of court/pre-trial) representation/assertion/statement o The previous representation must contain an assertion about a relevant fact o The previous representation must be adduced at trial or in the hearing for the purpose of proving the existence of the fact asserted in the representation: Why is the prior statement or representation thought to be relevant What precisely it is being adduced to prove How it will be used to prove this matter

Evidence of a previous statement or representation is not hearsay unless it is to prove the truth of its contents, the existence of the facts asserted in the statement. o Subramanium was simply saying that that was what the rebels told him, that he believed and the he acted accordingly. What was said to him was thus not hearsay.

Under the UAE: o The assertion of fact must be one that the maker of the representation intended to make o The representation must be made by a person

Evidence Act 1995 Section 59 The hearsay rule--exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact . (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

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Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the hearsay rule are as follows: evidence relevant for a non-hearsay purpose (section 60); first-hand hearsay: civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64); criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66);

contemporaneous statements about a person's health etc. (section 66A); business records (section 69); tags and labels (section 70); electronic communications (section 71); Aboriginal and Torres Strait Islander traditional laws and customs (section 72); marriage, family history or family relationships (section 73); public or general rights (section 74); use of evidence in interlocutory proceedings (section 75); admissions (section 81); representations about employment or authority (subsection 87(2)); exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3)); character of and expert opinion about accused persons (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

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Examples: (1) D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. (2) P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. (3) W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.

representation includes: (a) An express of implied representation (whether oral or in writing) (b) A representation to be inferred from conduct (c) A representation not intended by its maker to be communicated to or seen by another person (d) A representation that for any reason is not communicated.

Section 62 defines who is a declarant: a person who had personal knowledge of the asserted fact : see s62(2). Witness: the person under oath in the current proceedings who gives evidence of a previous representation made by the declarant. Note: it is possible for a declarant and a witness to be the same person. That is, previous representations of a witness made otherwise than in the course of the current proceedings can also be hearsay evidence. First hand hearsay: Witness said A said . OR Document said A said . OR video said A said . (where A is the declarant). Second hand hearsay: Witness said A said B said . OR Document said A said B said . OR video said A said B said (where A and B are both declarants).

Subramaniam v Public Prosecutor (1956) 1 WLR 965 (PC)

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The trial judge refused to allow him to relate the dire threats the rebels made to him.

Mr De Silva and Lords Radcliffe and Tucker: It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

Li, Wing Cheong v R [2010] NSW CCA 40 Prosecution case that coded phone conversations took place over a period of time from February-April 2005 between those involved in money laundering. Ground 1 admission of telephone calls between Iglesias and Viana 29 It was submitted on behalf of the appellant that the trial judge incorrectly admitted evidence of the recorded telephone calls between Iglesias and John Viana. The evidence, it was argued, was inadmissible and/or the trial judge should have rejected the evidence in the exercise of his discretion. *** (3) The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose are not excluded by the rule: Walton v The Queen (1988-1989) CLR 283 at 288 per Mason CJ. (4) Evidence of an out-of-court statement may constitute original evidence, in that it has independent evidentiary value in proving a relevant matter as, for example, th e authors intentions where such intentions are a fact in issue or a fact relevant to a fact in issue. Testimony of such a statement does not infringe the hearsay rule: Walton. consideration of ground 1: if evidence of a previous representation made by a person is not adduced to prove the existence of a fact asserted by the representation, it is not classified as hearsay. Evidence of that kind is sometimes referred to as original evidence to distinguish it from hearsay evidence: The reception of such evidence, of course, had to be accompanied by a direction to the

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jury by the trial judge that out of court statements must not be regarded by them as evidence of the truth of any facts stated in them. 60 The evidence of the recorded telephone calls, accordingly, was properly admitted as evidence relevant to a fact in issue. No error has been established in respect of the admission of the evidence.

Section 60 states that once any statement has been received into evidence for a nonhearsay purpose, it can also be used as proof of the facts it asserts.

Intended to assert: Section 59 only excludes intended assertions. Unintended assertions are not excluded under s 59. It is the maker of the representation or statement (the declarant) whose intention needs to be judged not the person giving evidence of the statement (the witness). Intention can be judged by using an objective test, as per s59(2A): by standing in the shoes of the maker of the statement and considering the circumstances, ask: did the maker of the statement intend to assert the truth of the contents of the statement ?

Walton v R (1989) 166 CLR 283 Case relating to the murder of de-facto ex-wife.

Mason CJ: First the witness states that the deceased had called out to the child M after answering the telephone, M, daddys on the phone and. This statement clearly constituted hearsay to the extent that it was tendered in order to prove the identity of the caller since it amounts to express assertion as to the persons identity. The trial judge, howeve r seems to have regarded the statement as evidencing the deceaseds belief and as such forming an integral part of the statements concerning intention.

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THE RELEVANCE TEST Relevance: always ask What is the purpose for which the representation is to be admitted? Before applying the hearsay rule, evidence of a previous representation must be relevant to a fact in issue (hearsay purpose) or for a non-hearsay purpose under the test in s 55. A previous representation will be hearsay evidence if the purpose for admitting the representation is to prove the existence of the fact asserted (or to establish the truth of what is contained in the representation: Subramaniam). A previous representation will NOT be hearsay evidence if the purpose for admitting the representation is merely to establish that the statement was made; that is, to admit it for a non-hearsay purpose and to prove as aspect of credibility, character, state of mind etc. If not relevant for either purpose, evidence of the previous representation is inadmissible and the issue of exclusion under the hearsay rule (s 59) does not arise. *** Once characterised as hearsay or non-hearsay, the question remains whether the threshold tests of relevance has been satisfied. Non-hearsay: Necessary to maintain the relevance of the representation without reliance on its truth value. In Papakosmas v R (1999) 196 CLR 297: In the circumstances of the present case, it is impossible to deny that the evidence of the complaints made to the three witnesses in question could be regarded by the jury as affecting their assessment of the probability that there was no consent to the intercourse .

THE PURPOSE TEST


The hearsay rule is concerned only with previous representations relied upon to prove the existence of a fact asserted in the representation. If the statements evidentiary value is independent of its truth value (if any), the hearsay rule will not apply.

PREV REP MUST BE RELEVANT (s55)

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HEARSAY PURPOSE (establish truth of asserted factmust be relevant to fact in issuemust be


one that the maker intended to make s 59(2A)) s59 applies

INADMISSIBLE unless

hearsay exception applies OR NON-HEARSAY PURPOSE (e.g. cred; state of mind;character of D) ADMISSIBLE: hearsay rule doesnt apply s60 applies

Evidence Act 1995 Section 59(2A) The hearsay rule--exclusion of hearsay evidence (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Unintended assertions: Not caught by s59 Admissible under s55 if relevant Need to distinguish between intended and unintended assertions Generally, an express assertion of fact can assume declarant intended to assert e.g. I saw a red car Intention usually a problem with implied assertions of fact

NON-HEARSAY PURPOSE The following are instances of previous representations that are not caught by the hearsay rule: Previous representations relevant to credibility: Witness prior inconsistent and

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consistent statements may detract from or bolster their credibility. Previous representations adduces to establish the basis of expert opinions Translated representations Previous representations of identification: A representation that is out-of-court act of identification is caught by s 59, where it is tendered to prove the identity of the identified person, but not to prove that an identification took place. Previous representations relevant to establish a persons state of mind o For example, R v Bull (2000) conversation was held to be relevant because it assisted the jury in determining what was the complainants intention in visiting the accused and whether or not she consented to sexual contact with them.

LIMITING USE
If evidence is admitted for a non-hearsay purpose and there is a danger that the trier of fact may use it for an impermissible hearsay purpose, the trial judge must instruct the jury on its permissible use. If the danger of misuse may not be adequately guarded against by careful directions, the evidence may warrant exclusion on discretionary grounds: Evidence Act 1995 Section 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing.

REPRESENTATIONS WITH BOTH A HEARSAY AND NON-HEARSAY PURPOSE

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Section 60 extends the operation of the original section to second hand hearsay except with respect to admissions which, through section s60(3) remain only subject to s 60 if they are first hand.

It may be excluded under the discretionary exclusions is the probative value of the nonhearsay inference is slight in comparison to the prejudice from the non-hearsay purpose.

Evidence Act 1995 Section 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)). Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. (3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay: see section 82. See Lee v R (1998): page 1503-1509. Aslett v R [2006] NSWCCA 49 000 call from defendants mother, that her son confessed to a rape.

Barr J (Spigelman CJ and Howie J agreeing):


Ground 5: his Honour erred in admitting Exhibits C37 and C38, a tape of a 000 call made by Mrs Joanne Bonham and a transcript of that call

79 It was submitted that his Honour erred in admitting the evidence of what Mrs Bonham said because her report of what Bonham told her about his part was second-hand hearsay and inadmissible: Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594. Alternatively, it was submitted, the tape had no probative value and was prejudicial to the appellant because of its highly emotional content.The court found that the evidence did not pass s 55 (relevance).

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FIRST HAND HEARSAY EXCEPTIONS


1. Is the previous representation first-hand or more remote hearsay? 2. If it is first hand: a. Is the evidence to be adduced in a civil or a criminal case? b. Is the maker of the previous representation available to testify?

HEARSAY EXCEPTIONS UNDER THE EVIDENCE ACT (if a previous representation is admitted to prove the existence of the fact asserted) FIRST HAND SECOND HAND (s 61 applies; CIVIL s 62 defines 1st hand) Maker available: s 64 Maker unavailable: s 63 (limited exceptions Business Records Tags, Labels, Writing on Object Electronic Communications CRIMINAL Maker available: s 66 Maker unavailable: s 65 NOTICE CONTEMPORANEOUS REPRESENTATIONS s 67 s 66A (s 61 does not apply) Traditional Laws and Customs Reputations only) s 69 s 70

s 71

s 72 ss 73/74

Evidence Act 1995 Section 61 Exceptions to the hearsay rule dependent on competency (1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of subsection 13(1). (2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Note: For the admissibility of such contemporaneous representations, see section 66A. (3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence

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about the asserted fact.

Evidence Act 1995 Section 62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

Evidence Act 1995 Section 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind; or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is reliable; or (d) was: (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable. Note: Section 67 imposes notice requirements relating to this subsection. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

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(a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note: Section 67 imposes notice requirements relating to this subsection. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding; and (b) is admitted into evidence in the criminal proceeding because of subsection (3); cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time; and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made; or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends: (a) to damage the person's reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note: Section 67 imposes notice requirements relating to this subsection. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another

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representation about the matter that: (a) is adduced by another party; and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Most exceptions for first-hand hearsay are dependent on the previous representation being proved by a person who saw, heard or otherwise perceived its making. A hearsay exception subject to this condition would therefore not cover the out-of-court statemet which is made in writing if no-one observed its making. For example, in Conway v R (2000) diary entries made by the deceased were held to be admissible because the Crown could not adduce evidence of them through someone who had seen, heard or otherwise perceived their making.

Must also take reasonable steps to locate witness: page 1517. When the declarant is not available Notice under the UAE must be served within a reasonable time must identify the exception that the party will be relying on.

EXCEPTIONS IN CIVIL CASES


Evidence Act 1995 Section 63 Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note 1: Note 2: Section 67 imposes notice requirements relating to this subsection. Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Evidence Act 1995 Section 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous

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representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation; if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note: Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

PROCEDURAL DISADVANTAGE
Evidence Act 1995 Section 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.

Evidence Act 1995 Section 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

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EXCEPTIONS IN CRIMINAL CASES


Evidence Act 1995 Section 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind; or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is reliable; or (d) was: (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable. Note: Section 67 imposes notice requirements relating to this subsection. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note: Section 67 imposes notice requirements relating to this subsection. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding; and (b) is admitted into evidence in the criminal proceeding because of subsection (3); cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time; and

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(b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made; or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends: (a) to damage the person's reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note: Section 67 imposes notice requirements relating to this subsection. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party; and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Definition of availability: A person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason not competent to give the evidence, or (c) the person is mentally or physically unable to give the evidence and it is not

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reasonably practicable to overcome that inability, or (d) it would be unlawful for the person to give the evidence, or (e) a provision of this Act prohibits the evidence being given, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

Evidence Act 1995 Section 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

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Note: -

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Hulme J in R v Parkes [2003] noted that s 66(2) requires that the maker of the representation has been or is to be called to give evidence. Papakosmas v R (1999) 196 CLR 297

Gleeson CJ and Hayne J: The person who made the representation (in this case the complainant) must be available to give evidence. That condition was fulfilled because the complainant herself gave evidence about the asserted fact. Had she not been available the evidence would not have been admissible under s 66. In the instant case, the fact and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complain and its consistency with other aspects of the complaints appearance and demeanour meant that it was not unfairly prejudicial. McHugh: Nothing in the present case required the judge to exercise the power conferred by s 136. Indeed the learned judge would have exercised his discretion erroneously if he had limited the use of the complaint evidence to the credibility issue. In the circumstances of this case, the complain evidence was not only relevant to the issues of consent and sexual intercourse but highly probative of the critical issues and likely to be reliable.

Freshness in memory: s 66(1) Gaudron, Gummow and Hayne JJ: The word fresh in its context in s 66 means recent or immediate.

Aouad and El-Zeyat v R [2011] NSWCCA 61

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Michael Rahman was an eye witness and he described features of the first man from which Fleming (a Comfit technician) compiled a Comfit portrayal. This information was provided on the day and 4 months later.

[232] [C]counsel for Aouad at the trial objected to the admission into evidence of only the comfit image itself. Counsel did not object to the admission into evidence of representations made by Mr Rahman to Detective Hamilton or to Mr Fleming and did not object to Mr Rahman giving evidence that the comfit image which had been produced resembled the first shooter.

James J (with whom McClellan CJ at CL agreed): 234 The trial judge held that Mr Rahman's evidence, comprising the selection of the component features from the comfit booklet and the assertion that the comfit image resembled the first shooter, was original, and not hearsay, evidence and, if this evidence was admissible (and its admissibility had not been disputed), then the comfit image itself was admissible. It was submitted that the "comfit identification" evidence was hearsay evidence and that it did not come within the exception to the hearsay rule in s 66(2) of the Evidence Act, because, when Mr Rahman had made representations about the appearance of the first man on 9 March 2004, the occurrence of the facts he was asserting was no longer "fresh" in his memory within the meaning given to the word "fresh" by the High Court in Graham v The Queen (1998) 195 CLR 666. R v Barbaro: Such evidence would be original evidence of the witness's state of mind at the time of the act of identification (see especially at para 43 per Grove J). 259 It was conceded by counsel for Aouad on this appeal that the representations made in the comfit request form of 30 October 2003 were first hand hearsay and were made at a time when the asserted facts were fresh in the memory of Mr Rahman and therefore came within the exception to the hearsay rule in s 66(2) of the Evidence Act. 262 In the circumstances, I consider that it was open to the trial judge to conclude, as she did, that the image of the first shooter was still "fresh" in the memory of Mr Rahman on 9 March 2004. ...

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R v XY [2010] NSWCCA 181 This sexual assault appeal considers s 66 and the fresh in the memory element in ss (2A). The assaults were alleged to have occurred in 2003 and 2005, when the complaint was 8-10 years of age and the accused (the complainants step -brother) was 15-18 years of age. The complainant told a school friend of the assaults in 2007 and then his parents in 2009. There is psychological research such as that by a Ms Cossins (2002) which has considered childrens reactions to sexual abuse and this research was considered by the Australian Law Reform Commission and this led to the new subsection 2A being introduced. I therefore have to rule that the evidence of complaint made to (name) and to the complainants parents are not admissible under s 66 of the Evidence Act. Whealy J (with whom Campbell JA and Simpson J agreed): In that decision, Levine J (with whom Newman and Barr JJ agreed) referred to s 66 of the Evidence Act and said: - Shortly stated, common sense would seem to indicate that the notion of freshness particularly in this area of the law is not anchored to nor determined by simply notions of the lapse of time. It is concerned with, in my opinion, the quality of the memory. A person might never forget the details of an event many years previously because it took place in circumstances which impressed it into the witness memory. Dr Cossins : the hearsay exception under s 66(2) overcomes the strictness of this approach because it applies when the maker of the statement is available to give evidence and is thus available for cross-examination...the High Court failed to recognise the documented differences between traumatic and non-traumatic memories and how the retention rates and qualities of such memories differ. The Commission found that recent research had established that emotion eliciting events are remembered very well, particularly the central actions as opposed to the peripheral detail. In other words, the presence of an emotional reaction in the witness would increase witness reliability rather than decrease it. rate of retention of memory is greater for remarkable and emotional events than for

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unremarkable events. Traumatic memory is different to other types of memory. Traumatic memory can lead to extremes of either retention or forgetting. The ALRC concluded: the distinct and complex nature of emotionally arousing crime means that the nature of the event concerned should be considered in deciding whether memory is fresh at the relevant time. Fresh in memory fresh in the memory of the person, the court may take into account all matters that it considers are relevant to the question. Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered. [at 79] For present purposes it may be seen that [s66(2A)] makes it clear that the context of the phrase fresh in the memory no longer is to be taken as an indication that it means recent or immediate. The expression fresh in the memory is now to be interpreted more widely than did the High Court in Grahams case. No longer is the core meaning of the phrase to be interpreted as essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation. Importantly, the court now must take into account the nature of the event concerned. *** 85 All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed fresh in the memory of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time mentioned to CD when the representation was made in 2007. 90 Ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate evidence and the weight to be given to evidence R v EM [2003] NSWCCA 374. 92 Given the repeated nature of the sexual incidents, their unusual features, and the youth

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and naivety in sexual terms of the complainant at the time they were said to have occurred, it is likely, indeed highly likely, that the memory of those events would remain with him for many years to come. For these reasons, I am satisfied that the judge fell into error. LMD v R [2012] VSCA 164 at [24] where there was a 7 year delay. The court said: the events [of sexual abuse] were inherently likely to remain firmly in her mind, if not as to detail, then as to the general nature of the behaviour.

Contemporaneous statements about a persons health etc.


Evidence Act 1995 Section 66A Exception: contemporaneous statements about a person's health etc. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. NB Section 61(2) says: This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Therefore declarant doesnt have to be competent for the purposes of s66A.

Examples: Victims statements to her family that she was intending to break off her relationship with the D but he was making it difficult: R v Serratore (murder trial) Victims statements to others that she feared the Ds use of knives: R v Lock (murder trial) Witness was allowed to give evidence of statements made by Mr He about negotiations between Fortescue and certain Chinese companies: ASIC v Fortescue Metals (breach of Corporations Act)

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REMOTE HEARSAY EXCEPTIONS


Business records checklist:
1. The representation must be relevant, s55, and adduced for a hearsay purpose. 2. The representation must be in a document (see definition). 3. The document must form part of the records kept for the purposes of a business either now or in the past (see dict. definition of business). 4. The representation must have been made or recorded in the course of or for the purpose of the business. 5. The representation was made by a person who had (or might reasonably be supposed to have had) personal knowledge of the asserted facts, OR was made based on information supplied by such a person. 6. The representation must not have been made or obtained in contemplation of or in connection with legal proceedings or a criminal investigation.

Evidence Act 1995 Section 69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

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(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records. Note 2: records. Section 182 gives this section a wider application in relation to Commonwealth

Section 69 will exclude the operation of the hearsay rule in respect of representations where: That are contained in documents that form part of the records kept for the purposes of business They have been made or recorded in the course of or for the purpose of business They have been made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted facts, or they have been made on the basis of information supplied by such a person The representation must not have been made or obtained in contemplation of or in connection with legal proceedings or a criminal investigation.

Cvetkovic v R [2010] NSWCCA 329 Attempted murder of estranged wife.

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Campbell JA: 349 The Appellant submitted that the entry in Constable Foscholos notebook was admissible as a business record. Section 69(2) Evidence Act contains an exception to the hearsay rule concerning some categories of representation contained in business records. 350 The overwhelming inference is that the entry in Constable Foscholos notebook was made in connection with an investigation relating or leading to a criminal proceeding. The criminal proceeding in question is that against the Appellant, arising from the stabbing of Mrs Cvetkovic. Thus section 69 provides no support for the admissibility of the entry.

Tags, labels and other miscellaneous exceptions


Evidence Act 1995 Section 70 Exception: contents of tags, labels and writing (1) The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed: (a) in the course of a business; and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object. Note: Section 182 gives this subsection a wider application in relation to Commonwealth records. (2) This section, and any provision of a law of a State or Territory that permits the use in evidence of such a tag, label or writing as an exception to a rule of law restricting the admissibility or use of hearsay evidence, does not apply to: (a) a Customs prosecution within the meaning of Part XIV of the Customs Act 1901 ; or (b) an Excise prosecution within the meaning of Part XI of the Excise Act 1901 . Note 1: Subsection (2) does not appear in section 70 of the NSW Act. Note 2: Section 5 extends the application of this subsection to proceedings in all Australian courts.

Evidence Act 1995 Section 71 Exception: electronic communications The hearsay rule does not apply to a representation contained in a document

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recording an electronic communication so far as the representation is a representation as to: (a) the identity of the person from whom or on whose behalf the communication was sent; or (b) the date on which or the time at which the communication was sent; or (c) the destination of the communication or the identity of the person to whom the communication was addressed. Note 1: Note 2: records. Note 3: Division 3 of Part 4.3 contains presumptions about electronic communications. Section 182 gives this section a wider application in relation to Commonwealth Electronic communication is defined in the Dictionary.

Evidence Act 1995 Section 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

Evidence Act 1995 Section 73 Exception: reputation as to relationships and age (1) The hearsay rule does not apply to evidence of reputation concerning: (a) whether a person was, at a particular time or at any time, a married person; or (b) whether a man and a woman cohabiting at a particular time were married to each other at that time; or (c) a person's age; or (d) family history or a family relationship. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless: (a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted; or (b) the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence. (3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

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Evidence Act 1995 Section 74 Exception: reputation of public or general rights (1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

HEARSAY AND DOCUMENTS


Evidence Act 1995 Section 57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. Evidence Act 1995 Section 58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn. Evidence Act 1995 Section 48 Proof of contents of documents (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a) adducing evidence of an admission made by another party to the proceeding

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as to the contents of the document in question; (b) tendering a document that: (i) is or purports to be a copy of the document in question; and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents; (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)--tendering a document that is or purports to be a transcript of the words; (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it--tendering a document that was or purports to have been produced by use of the device; (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence); and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary; (f) if the document in question is a public document--tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by the Government Printer or by the government or official printer of a State or Territory; or (ii) by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament. (2) Subsection (1) applies to a document in question whether the document in question is available to the party or not. (3) If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used: (a) in respect of the party's case against the other party who made the admission concerned; or (b) in respect of the other party's case against the party who adduced the evidence in that way. (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or (b) adducing from a witness evidence of the contents of the document in

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question. Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents Evidence Act 1995 Section 50 Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and (b) given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. Evidence Act 1995 Section 29(4) Manner and form of questioning witnesses and their responses (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 be given.

Evidence Act 1995 Section 189 The voir dire (1) If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not); or (b) evidence can be used against a person; or (c) a witness is competent or compellable; 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. (2) If there is a jury, a preliminary question whether: (a) particular evidence is evidence of an admission, or evidence to which

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section 138 applies; or (b) evidence of an admission, or evidence to which section 138 applies, should be admitted; is to be heard and determined in the jury's absence. (3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant. (4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders. (5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account: (a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant; and (b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and (c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing). (6) Subsection 128(10) does not apply to a hearing to decide a preliminary question. (7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates. (8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless: (a) it is inconsistent with other evidence given by the witness in the proceeding; or (b) the witness has died. See: 19.50-19.54 re: technology and recordings.

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19. TENDENCY AND COINCIDENCE


TENDENCY
1. Must be relevant for the purpose for which it is admitted: s 55 TENDENCY PURPOSE s 97 (significant probative value test) 101(2) balancing test if adduced by Prosecution if admissible ss 135/137 do not apply NON-TENDENCY PURPOSE (state of mind, character etc)section 94 ss 135/137 may exclude if admissible s 95/136 apply The term tendency refers to a persons inclination or propensity to act, think or feel a particular way. Tendency will ordinarily be relevant to a fact in issue by seeking to establish a relevant propensity and that propensity is a link in the process of tending to show that the person did in fact behave in the way alleged in the case. Such evidence gains probative value when it is possible to infer that because of a tendency to act or think in a particular way on other occasions the accused acted or though in the same way on the occasion in question.

Evidence Act 1995 Section 94 Application (1) This Part does not apply to evidence that relates only to the credibility of a witness. (2) This Part does not apply so far as a proceeding relates to bail or sentencing. (3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person; or (b) a tendency that a person has or had; if that character, reputation, conduct or tendency is a fact in issue Evidence Act 1995 Section 96

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Failure to act A reference in this Part to doing an act includes a reference to failing to do that act.

The tendency rule:


Evidence Act 1995 Section 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. See the Makin case on page 1315-1316- issue that they had not been convicted for previous baby-murders in order for there to be a tendency to emerge. Dao v R [2011] NSWCCA 63 Simpson J: 184. For the purpose of s 97, the real question is whether the evidence is capable, to a significant degree, of rationally affecting the assessment (by the jury) of the probability of the existence of a fact in issue.

SIGNIFICANT PROBATIVE VALUE Means something more than mere relevance but less than a substantial degree of

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relevance Differs between civil and criminal due to standard of proof (balance of probabilities v beyond reasonable doubt). In assessing this standard, one must consider: o Other evidence has or will be adduced- 97(1)(b) o Whether the tendency evidence is disputed or accepted o Whether it goes to a critical fact in the prosecutions case o When the other conduct occurred (if it was a long time ago v recently) o The number of incidents establishing tendency o The strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred. o Whether the evidence discloses unusual features, system of pattern o Onus and standard of proof adducing the evidence. For example: In Lockyer the defence used Ms Dolans past tendency to beat her children to cast doubt as to who may have been responsible for murder. The task was to establish that there was a reasonable possibility that the fact in issue occurred.

Reasonable Notice in accordance with ss 97(1)(a) and 98(1)(a) purpose of notice is to prevent ambushing opponent.

Evidence Act 1995 Section 99 Requirements for notices Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

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Coincidence Rule:
1. Evidence of TWO or more events must be relevant for the purpose of which it is admitted s 55 COINCIDENCE PURPOSE s 98 101(2) balancing test if adduced by Prosecution if admissible ss 135/137 do not apply NON-COINCIDENCE PURPOSE ss 135/137 may exclude if admissible s 95/136 apply

coincidence definition: refers to a set of circumstances where the probative force of the evidence arises from the degree of improbability that coincidence provides an innocent explanation for the evidence. coincidence evidence gains its probative value when it indicates objective improbability of an event occurring accidentally. Links a person to certain activities or actions by seeking to negate mere coincidence. for example: Makins propensity to kill babies. Coincidence reasoning is going to be drawn on where there are accusations regarding a number of substantially and relevantly similar events with substantially similar circumstances. There is no logical force in saying that the accusations show a tendency to act in a particular way, as that would lead to circular reasoning - using one unproven accusation to prove guilt of another and that other proves the first. For example: Perry v R (1982) on page 1358. (Ms. Perry accused of killing husband, tendency to kill previous partners- led to circular reasoning) For coincidence to apply it must satisfy the definition of related events - Particular evidence will not be tendency evidence if it doesnt show that D acted in a particular way) but may be coincidence evidence if it shows that D is associated with particular (criminal) events

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Evidence Act 1995 Section 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note: Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

To apply section 98: List the features of the two or more events Include the event which led to the charges against the D From this compare the similarities of the events and/or the circumstances in which they occurred.

CGL v DPP [2010] VSCA 26 Questions to ask to establish coincidence: 1. Are the similarities in the specified events and/or in the circumstances in which they

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occurred such that it is improbable that the events occurred coincidentally? 2. If so, would the evidence of those events and circumstances tend to prove that the accused: (a) did the specified act; or (b) had the specified state of mind where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue? 3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or ought to be adduced by the prosecution? 4. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?

See R v Ellis page 1359: trial judge found that the evidence supported coincidence reasoning. R v Folbigg (2003) page 1361-1367.

Evidence Act 1995 Section 100 Court may dispense with notice requirements (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97. (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98. (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit; and (b) may be given either at or before the hearing. (6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence

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to a specified party, or to each other party other than a specified party; (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence; (c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence. Evidence Act 1995 Section 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. COMMON LAW: probative value has to outweigh prejudicial effect Pfennig test: is there a rational view of the evid consistent with the innocence of the D? If no rational view, the probative value is considered to outweigh prejudicial effect

UAE: probative value has to substantially outweigh prejudicial effect

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s101(2) test: up until Ellis the NSW CCA imported the Pfennig test into s101 post-Ellis, trial judge must engage in the weighing process required by s101(2) See GAC in SM page 94-97. Samadi & Djait v R [2008] NSWCCA 330 99 The appellants contended that that there was a risk that the jury would be convinced, by the sheer number of counts alone, that the appellants must be guilty. 100 The trial judge understood that this argument was advanced not only on the basis that the coincidence evidence should be rejected because of its prejudicial value, but also to support the argument that the counts in the indictment be severed. In her judgment of 27 January 2009 at [16], her Honour acknowledged that there was a potential prejudice in that a jury might use the number of counts to reason that the appellants must be guilty, rather than properly using the coincidence evidence on the basis of its similarities or, for that matter, assessing what might be thought to be the dissimilarities in the evidence. 101 Her Honour said that such a prejudice arose in any trial where there were a number of counts being tried together. Her Honour concluded, however, that the similarities amongst the incidents were so striking that any prejudice could be cured by a direction to the jury that they would not be entitled to reason in such a way. Her Honour also considered that notwithstanding there was a possibility of such prejudice, it was substantially outweighed by the probative value of the similarity of these incidents. 102 In my opinion, her Honour, having recognised the potential prejudice, gave appropriate directions to the jury. In any event, the appellants contention that the jury was likely to be persuaded by the sheer number of counts fails to grapple with the reality of the circumstances of the case. Whilst there were a large number of counts, those counts arose out of six incidents. The number of counts would not, in my opinion, lead a jury, properly applying its mind to the task, to reason that simply because there were a number of incidents with striking similarities, that the appellants must be guilty of all offences. There were distinct issues relating to each count. For example, Samadis identification was in issue in each count; the question of consent was in issue in the sexual assault count; the question of theft was in issue in the s 38 counts. The jury were given appropriate directions, about which, I should add,

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there was no complaint. In my opinion, this ground has not been made out.

s 95 Warning:
Evidence Act 1995 Section 95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

SECTION 95 MEANS:
If tendency evidence is admitted for a non-tendency purpose, it cannot be used for its tendency purpose. Unlike the situation with hearsay evidence, there is no magic wand provision, analogous to s60, that allows evidence, admitted for a non-tendency purpose, to be used for its tendency purpose. This means a s136 direction will need to be given by the trial judge to the jury.

See R v Li on page 1352- to understand how the tendency rule intersects relationship evidence.

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20. CROSS EXAMINING A DEFENDANT ON CHARACTER AND/OR CREDIBILITY


Raising character and its consequences:
GOOD CHARACTER EVIDENCE can be adduced by the Defendant without leave of the court the rules of exclusion do not apply: s110(1) favours Defendants with good character backgrounds Evidence Act 1995 Section 104 Further protections: cross-examination of accused (1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted; or BAD CHARACTER EVIDENCE the prosecution might seek to admit bad char evid about the D either as: character evidence, or tendency evidence e.g: evid of prior criminal conduct A co-accused will want to admit bad char evid about his/her co-accused: s111

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(b) the investigation of the offence for which the defendant is being prosecuted. (6) Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and (b) that evidence has been admitted. Evidence Act 1995 Section 112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave. Evidence Act 1995 Section 110 Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect. Evidence Act 1995 Section 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates; or (c) has made a prior inconsistent statement.

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(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking If defendant raises good character= lose the character shield Leave must be granted, failure to mention 192(2) factors will =appeal: Stanoevski

RAISING GOOD CHARACTER OPTIONS 1. Defendant raises good character in examination in chief or cross-examination (s110(1)) Prosecutor can adduce rebuttal evidence: s 110(2) or (3) prosecutor can only cross-examine defendant on character with leave: ss112 and 192 2. Defendant raises good character by calling a witness prosecutor seeks leave to reopen to adduce rebuttal bad character evidence

CROSS EXAMINATION OF ACCUSED ON CREDIBILITY BY PROSECUTOR cross examination questionss 102 s 103 104(2) leave required (s192) 104(4) is trigger for 104(2) ss135/137 & s192 have to be considered together ( El-Azziz) OR cross examination questionss 102 s 103 104(3) no leave required

CROSS-EXAMINING A DEFENDANT: CREDIBILITY AND/OR CHARACTER SM: 25.107A (R v El-Azzi), 25.120, 25.123

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21. CHARACTER EVIDENCE AND JOINT TRIALS


Evidence Act 1995 Section 104(6) Further protections: cross-examination of accused (6) Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and (b) that evidence has been admitted.

Evidence Act 1995 Section 111 Evidence about character of co-accused (1) The hearsay rule and the tendency rule do not apply to evidence of a defendant's character if: (a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and (b) the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and (c) the opinion is wholly or substantially based on that knowledge. (2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.

CROSS EXAMINATION OF ACCUSED BY CO-ACCUSED ON CREDIBILITY cross examination questionss 102 s 103 test 104(6) adverse test must be met

CHARACTER EVIDENCE & JOINT TRIALS ss 110-111, 192 , 25.124-25.126,

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25.129-25.134, 25.140 Randall)

CROSS-EXAMINATION OF DEFENDANT
ON CHARACTER if D adduces good character evidence (in EIC or x-x): 1. must be intentional, not merely emphatic denial (Gabriel, Bartle, El-Kheir) ON CREDIBILITY 1. The Prosecution: s104(4) must be triggered If s104(3) is satisfied, P can x-x about the matters listed in (3)(a), (b) and (c)

2. s112P must seek leave to x-x on matters WITHOUT LEAVE. arising from character evid adduced by D 3. Trial judge must have regard to s192 matters and ss135/137 unfairness issues (ElAzzi) 4. P can adduce rebuttal bad character evidence, i.e., the mirror image of the good char evid adduced: s110(2) or (3) 5. CO-ACCUSED can adduce character 2. OTHERWISE, s104(2) prevents P from x-xing D on any other matters unless leave is granted 3. Granting of leave: s104(4) must be satisfied s104(5) is a protection for D s192 matters weighed up along with

evidence about D under s111; or apply to x-x s135/137 fairness (El-Azzi) D under s112 4. A co-accused WITH LEAVE, only if s104(6) satisfied: evid adduced that is adverse to coA

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22. OPINION EVIDENCE


1. Opinion evidence must be relevant to fact in issue.

OPINION PURPOSE to prove the existence of a fact about which the opinion is expressedsection 76 appliessection 78 LAY opinions OR section 79 EXPERT opinions

NON-OPINION PURPOSE e.g. state of mind section 77 applies s 135/136

Opinion definition: FOR UAE: an inference from observed and communicable data: Guide Dog Owners a conclusion, usually judgemental or debatable, reasoned from

facts: Harrington-Smith v WA: is another definition that has been used by the Federal Court

Fact and opinion: 26:1-26:3 Evidence Act 1995 Section 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the opinion rule are as follows:

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summaries of voluminous or complex documents (subsection 50(3)); evidence relevant otherwise than as opinion evidence (section 77); lay opinion (section 78); Aboriginal and Torres Strait Islander traditional laws and customs (section 78A); expert opinion (section 79); admissions (section 81);

exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3)); character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. Examples: (1) P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P's neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own. (2) P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

Evidence Act 1995 Section 77 Exception: evidence relevant otherwise than as opinion evidence The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

Lay opinion evidence: 26-12-26-17


Evidence Act 1995 Section 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

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Interpretation: The opinion is about a matter or event relevant to the trial A witness perceives this matter or event The witness forms an opinion based on their first hand knowledge of the matter or event . It is necessary for the witness to give their opinion in order to understand the witness perception of the matter or event Example: witness perceives Joiner arguing with his wife at a wedding reception; the witness opinion that Joiner was angry was relevant to the FII, intention to murder The limits of lay opinion SM: 26.13A (Partington). Expert opinion evidence: SM: 26.18A (s 79); SM: 26.18B, (s 108C, credibility/child development expertise)
Evidence Act 1995 Section 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

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experts reasoning process 1. facts (which form the basis of the opinion) must be disclosed, previous representations- non-hearsay 2. inferences drawn must be disclosed 3. opinion developed from specialised knowledge, study etc.

Pre-conditions for admiss of expert evidence: Makita P/L 1. That there is a recognised field of specialised knowledge 2. By reason of training, study or experience witness must qualify as an expert in that field 3. Opinion given must be wholly or substantially based on the witness expert knowledge and must be within the witness expertise 4. Facts on which opinion is based must be identified and proved by the expert 5. Facts on which opinion is based must form a proper foundation for the opinion 6. Expert must demonstrate the scientific or other intellectual basis for the conclusions reached

Evidence Act 1995 Section 108C Exception: evidence of persons with specialised knowledge (1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: (a) the person has specialised knowledge based on the person's training, study

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or experience; and (b) the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of a witness; and (c) the court gives leave to adduce the evidence. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Qualifying the expert: 26.18-19, 27.19A, 26.22

[Fields of expertise 26.24, containing expertise 26.40, basis rule 26.41].

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23. IDENTIFICATION EVIDENCE


Evidence Act 1995 Section 113 Application of Part This Part applies only in a criminal proceeding

Definition: means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion.

ID Evidence: Is limited to ID by a person Includes Visual ID evidence Includes Aural and voice ID Includes Identification by touch, smell or gait Resemblance evidence

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Recognition evidence (by a person who knows the D) Does not include evidence about an object (e.g. clothing, vehicle) Does not include an ID of someone not the D Does not include court demonstrations by the D of his/her appearance Does not include negative ID evidence e.g. from a witness that they do not recognise D as offender

Evidence Act 1995 Section 114 Exclusion of visual identification evidence (1) In this section: "visual identification evidence" means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence. (2) Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or (c) the defendant refused to take part in such a parade; and the identification was made without the person who made it having been intentionally influenced to identify the defendant. (3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account: (a) the kind of offence, and the gravity of the offence, concerned; and (b) the importance of the evidence; and (c) the practicality of holding an identification parade having regard, among other things: (i) if the defendant failed to cooperate in the conduct of the parade--to the manner and extent of, and the reason (if any) for, the failure; and (ii) in any case--to whether the identification was made at or about the time of the commission of the offence; and (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who

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made the identification. (4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held. (5) If: (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and (b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present; it is presumed that it would not have been reasonable to have held an identification parade at that time. (6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

Evidence Act 1995 Section 115 Exclusion of evidence of identification by pictures (1) In this section: "picture identification evidence" means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. (2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody. (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and (b) the picture of the defendant that was examined was made before the defendant was taken into that police custody. (4) Subsection (3) does not apply if: (a) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or (b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody. (5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the

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police force investigating the commission of the offence with which the defendant has been charged, unless: (a) the defendant refused to take part in an identification parade; or (b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or (c) it would not have been reasonable to have held an identification parade that included the defendant. (6) Subsections 114(3), (4), (5) and (6) apply in determining, for the purposes of paragraph (5)(c) of this section, whether it would have been reasonable to have held an identification parade. (7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant: (a) if the picture of the defendant was made after the defendant was taken into that custody--inform the jury that the picture was made after the defendant was taken into that custody; or (b) otherwise--warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence. Note: Sections 116 and 165 also deal with warnings about identification evidence. (8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant. (9) This section applies in addition to section 114. (10) In this section: (a) a reference to a picture includes a reference to a photograph; and (b) a reference to making a picture includes a reference to taking a photograph. Note: police are only permitted to rely on recent photographs of the Defendant

Evidence Act 1995 Section 116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury.

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Warning re: ID evidence: s115(7) applies to picture ID evidence of D if evidence is admitted (mandatory) s116 applies if the visual or picture ID evidence comes under the dictionary definition (mandatory subject to Dhanhoa) s165 applies to ID evidence (as defined) only if warning requested by a party (not mandatory)

Read: 17.1-17.5, 17.8, 17.15-17.19; SM: 17.21A (Forbes), 17.22-17.35 17.39-17.48; 17.50-17.61 SM:17.58A (Ilioski v R) SM: 17.60A (Trudgett v R)

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24. JUDICIAL DIRECTIONS, WARNING AND INFORMATION


- The role of judicial warnings: 18.1-4 - Judge/Jury challenges: 18.5-.9 - Delayed complaint warnings, the Longman legacy: o 18.10-13, 23.32-.36 (R v BWT just skim read), SM: 18.13A (165B)
Evidence Act 1995 Section 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported; and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. Note: Section 182 gives this Division a wider application in relation to Commonwealth records and certain Commonwealth documents.

- Delayed prosecutions and stay orders: SM: 18.13A ( R v Edwards) - The statutory warnings re unreliability: 18.14 (s 165)-18.27

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Evidence Act 1995 Section 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies; (b) identification evidence; (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding; (e) evidence given in a criminal proceeding by a witness who is a prison informer; (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant; (g) in a proceeding against the estate of a deceased person--evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with subsections 165A(2) and (3).

Some egs of warnings: 18.28-35;

- CL corroboration warnings (obligation abolished (s 164): 18.45-.47


Evidence Act 1995 Section 164

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Corroboration requirements abolished (1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. (3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or (b) give a direction relating to the absence of corroboration.

Corroboration warnings regarding the evidence of children and s.a. complainants are not permissible (s165A, UEA; s294AA, CPA) except in certain circs A corroboration warning in relation to accomplice evidence is not mandatory (s164) but can still be given under either s165(1)(d) or the common law See Conway Accomplice evidence: 18.48-.9, 18.58 (if time -18.50-.1). Judges summing up 1. Prosecutions burden of proof 2. Ingredients (elements) of the offence 3. Relevant law to be applied to the facts 4. Summary of the evidence that relates to each ingredient 5. Prosecution & defence arguments in relation to that evidence 6. Applicable common law and Evidence Act warnings after seeking submissions from P and D

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WARNINGS REGIME COMMON LAW Longman warning Where there has been a lengthy delay between complaint and trial: Longman warning. For wording of, see [23.34] Mandatory warning but see Crennan J in R v Tully EVIDENCE ACT Section 165B warning Not mandatory Given where D has suffered a significant forensic disadvantage as a result of delay D must apply for warning Arguably the common law Longman warning has been retained under s165B(5) This means a trial judge could end up giving both the common law and s165B warnings. This prediction has been realised in R v DF [2010] ACTSC 31, at [254] and [267], per Penfold J . See also R v Forsti [2010] ACTSC 85 at [42], per Gray J. The trial judge can refuse to give a warning under s165B(3) if good reasons for not doing so. Section 165 warnings not mandatory under s 165(2), a party must request the warning given when evidence is of a kind that may be unreliable a s 165 warning is not limited to the types of unreliable evidence listed in sub-section (1) evidence of a kind refers to a particular type or category of evidence rather than the individual witness; see R v Baartman; R v Clark content of the warning: s 165(2); see R v MM and e.g. [18.35] s 165(3): a judge need not give a warning if there are good reasons for not doing so trial judges must state their reasons: R v Steward; R v Sullivan s 165(5): reserves the power of a judge to give common law warnings and directions irrespective of a defence request under s 165(2), certain common law warnings will still be mandatory e.g. a Pollitt warning Identification evidence s115(7) applies to picture ID evidence s 116 and s 165(1)(b) warnings triggered if ID evidence definition satisfied s165(1)(b) not mandatory; see above s 116(1): content of warning s116 warning mandatory if triggered but this is subject to Dhanhoa

Prison informer evidence Pollitt warning content of the warning see [18.32] mandatory if no evidence to corroborate evidence of prison informer Corroboration warnings historically applied to 3 classes of witnesses: children, accomplices and sexual assault complainants the common law obligation to give such a warning has been abolished: s 164, Evidence Act the warning may still be given except when expressly prohibited; see ss 165A, Evidence Act; s 294AA, CPA

Identification evidence Domican warning mandatory Content of warning: [18.58]

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