COURT PROCESS, EVIDENCE AND PROOF

(1)

COURT PROCESS, EVIDENCE AND PROOF

RELEVANCE 4

DEFINING RELEVANT EVIDENCE 4

ADMISSIBILITY 6

HEARSAY 7

EXCLUSIONARY RULE 7

FIRST-HAND EXCEPTIONS 9

SECOND-HAND EXCEPTIONS 14

PART 3.3 – OPINION 18

PATHWAY 18

EXCLUSIONARY RULE 18

EXCEPTIONS 19

PART 3.6 – TENDENCY 23

PATHWAY 23

DEFINITIONS AND EXCLUSIONARY RULES 23

(2)

PROCEDURE 29

PART 3.8 – CHARACTER 32

PATHWAY 32

ADMISSIBILITY 32

CREDIBILITY 36

PATHWAYS 36

EXCLUSIONARY RULE 37

EXCEPTIONS 37

PROTECTIONS 41

PART 3.9 – IDENTIFICATION 44

PATHWAYS 44

DEFINING IDENTIFICATION EVIDENCE 44

EXCLUSIONARY RULES 46

DISCRETIONARY AND MANDATORY EXCLUSIONS 51

DISCRETIONARY RULES 51

MANDATORY EXCLUSIONS 52

FAIR TRIAL PRINCIPLES 55

(3)

STANDARDS OF PROOF 55

RIGHT TO SILENCE 56

PROSECUTORIAL OBLIGATIONS 57

WITNESSES 59

COMPETENCE 59

COMPELLABILITY 60

OATHS AND AFFIRMATIONS 64

GENERAL RULES ABOUT GIVING EVIDENCE 65

QUESTIONING WITNESSES 65

WITNESS MEMORY PATHWAY 66

EXAMINATION-IN-CHIEF AND RE-EXAMINATION 67

CROSS-EXAMINATION 69

JURY DIRECTIONS 74

GENERAL REQUIREMENTS AT COMMON LAW 74

LIMITING THE USE OF EVIDENCE 74

DANGERS OF MISINTERPRETATION 75

COMMON LAW 81

LEAVE 82

APPLICATION 82

(4)

RELEVANCE

DEFINING RELEVANT EVIDENCE

Section 55 Application

(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.

Goldsmith v Sandilands [2002] provides that the fact/s in issue are … the material facts pleaded, constituting the cause of action and material facts providing justification or defence to the cause of action.

In this case …

The burden of proof is on the prosecution to prove the facts in issue in the proceeding beyond a reasonable doubt (S 141). The prosecution/defence seek to adduce evidence of …

- As required by S 55(1), the evidence is likely to rationally affect the assessment of the fact that ___, since …

o Papakosmas (1999) – ‘rationally’ requires a logical connection between the evidence and the facts in issue.

- The evidence is unlikely to rationally affect the assessment of the fact that ___, since …

o Therefore, the evidence is unlikely to pass the threshold test of S 55, as it is irrelevant to the proceeding.

o However, S 55(2) provides that evidence is not irrelevant because it relates only to:

§ (a) the credibility of ___

§ (b) the admissibility of other evidence, being …

§ (c) a failure to adduce evidence.

§ Therefore, while the evidence is not directly relevant to the FII, it passes the relevance threshold by virtue of S 55(2).

Case Law:

- IMM [2016] – questions relating to the credibility or reliability of the evidence are matters for the jury, they are not relevant to admissibility; ‘no question as to credibility of the evidence, or the witness giving it, can arise … no question as to the reliability of the evidence can arise’

(5)

- Graham [1998] – unless the making of the complaint can be said to assist the resolution of that question, the evidence of the complaint is not important and would do nothing except add to the length of the hearing

- Smith [2001] – police officers’ evidence [identification] did not pass the S 55 relevance test because the jurors were in a position to make their own comparisons

- R v Sievers [2004] – post-offence conduct may indicate a consciousness of guilt consistent with murder, therefore the evidence is relevant

- Shepherd (1990) – circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts

(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

The evidence of ___ is unlikely to rationally affect the assessment of the probability of the existence of the facts in issue, without the court making another finding. Therefore, the evidence may be deemed

‘provisionally relevant’ per S 57 since:

a) The court is reasonably open to making the finding that …

b) Subject to further evidence being admitted, the court will be reasonably open to making the finding that …

Case Law:

- R v Burrell – together, the circumstantial evidence on its own was not relevant, but taken together, takes on a different character

(6)

itself in determining whether the common purpose existed.

ADMISSIBILITY

(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.

The evidence has passed the relevance test in S 55(1/2). Therefore, per S 56(1), the evidence is admissible.

The evidence has not passed the relevance test in S 55. Therefore, per S 56(2), the evidence is inadmissible.

(7)

HEARSAY

EXCLUSIONARY RULE

(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.

The hearsay rule will apply to exclude the evidence of … since it is evidence of:

1. Previous representation, 2. Made by a person,

3. Intended assertion of fact,

4. Adduced for the purpose of proving the actual existence of the fact.

Previous Representation

The evidence includes a representation as defined by the UEA:

a) It was express/implied (either oral or in writing), b) It could be inferred from the conduct of …

c) Despite not intended by … to be communicated or seen by another person, d) Despite not being communicated

- Rose (2002) – may encompass a communication made by silence, or a failure to respond The evidence of … is therefore a previous representation, as it falls within the definition of

representation, and was made other than in the course of giving evidence in the proceeding in which the evidence was sought to be adduced (UEA Dictionary).

Made by a person

The fact that the representation was made by a person is not in dispute.

- O’Meara v Dominican Fathers – if the asserted fact was machine generated it will not be hearsay, but if recorded or interpreted by a person, it may be

Intended assertion of fact

The assertion of fact within the representation is …

Per S 59(2A), the circumstances of … indicate that it may/may not reasonably be supposed that ___

(declarant) intended to assert the fact that …

(8)

Purpose

The prosecution/defence seek to adduce the evidence for the purpose of …

- Since this is what ___ intended to assert in the representation, the evidence may be caught by the hearsay rule.

- This is not what ___ intended to assert in the representation, thus, the evidence will not likely be caught by the hearsay rule.

Case Law:

- Baker [2012] – in a criminal case, evidence of a third-party confession is hearsay if adduced to prove that the person who made the confession committed the crime rather than the accused - Harris [2005] – in a murder case, evidence of statements made by the deceased about who had

injured her and how, is hearsay if adduced to prove the source of the deceased’s injuries and how they came to be inflicted

- Papakosmas [1999] – evidence of previous representations made by the complainant in a sexual assault case to her friends about what happened to her, and who had done it, is hearsay if adduced to prove the details of the offence and identity of the perpetrator

- Lee [1998] – in a criminal case where the accused is charged with aggravated assault, evidence that he told an acquaintance shortly after the offence was committed that he ‘had just done a job and fired two shots’ is hearsay if tendered by the prosecution to prove the identity of who

committed the offence

- Myers v DPP [1965] – in a criminal case involving the theft of a motor vehicle, records from the factory where the cars were manufactured of identification numbers placed on the car at the time of their manufacture, is hearsay if adduced to prove that the accused had falsified the registration details of cars he was offering for sale

- Patel v Comptroller of Customs [1965] – in a case where the accused is charged with making a false declaration to customs officials about the country of origin of goods he had imported, evidence of labels on the goods’ packaging identifying them as the produce of a country different from that declared by the accused, is hearsay if adduced to prove that the country of origin is that on the labels

- Welsh (1996) – in a murder case where the accused raised the defence of diminished

responsibility at trial, evidence from the accused’s psychiatrist that the accused told her in the

(9)

Per S 65(9), since the defence has adduced evidence of a previous representation about ___, the hearsay rule no longer excludes prosecution evidence about the same matter.

- S 65(9)(b) is satisfied since the representation was given by ___, who saw/heard/perceived the representation being made.

Defendant Adducing Evidence

Applying S 65(8), the hearsay rule does not apply to the evidence being adduced by the defence as:

a) ___ saw/heard/perceived the representation being made when …

b) The evidence is reasonably necessary to refer to, in order to understand the representation The party must have given reasonable notice (S 67(1)) to adduce evidence under this section.

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.

___ made the representation, and is available to give evidence about the asserted fact.

Per S 66(2), ___ has been/is to be called to give evidence. The representation was made by:

- ___ (that person),

- ___ (that person) saw/heard/perceived the representation being made

(a) the nature of the event concerned reveals … (b) the age and health of the person suggests …

(c) the period of time between the occurrence of the asserted fact and the making of the representation was …

o XY [2010] – temporal relationship remains a relevant consideration, but is by no means determinative – the court must now take into account ‘the nature of the event

concerned’

o Clay [2014] – 20 years … ‘so far beyond what the legislature could ever have contemplated’

o Pate (a Pseudonym) [2015] – the greater the period has passed, the greater the need for there to be some reason why the event would be ‘fresh’ in the memory