Evidence Exam Notes
The relevant jurisdiction is the ACT so the Evidence Act 2011 (ACT) (‘EA’) applies (s 4). All references to legislative provisions are to the EA unless stated otherwise. To prosecute [accused] for [offence], the Prosecution (P) must prove beyond reasonable doubt that [accused] a) [element 1] b) [element 2] (s 141).
Is [the witness] competent and compellable?
• No facts suggest that X lacks competence based on lack of capacity (s 13), being a judge or juror (s 16) or being the defendant (s 17(2)), so X is presumed to be competent to give evidence (s 13(6)) and a competent person is also compellable (s 12(b)).
• [D – party asserting incompetence] bears the burden of demonstrating incompetence on the balance of probabilities (s 189(1)(c)).
o S 13 – competent means capable of understanding a question and giving an answer that can be understood.
▪ e.g. if witness has a mental, intellectual, physical disability/child + consider if it can be overcome?
o X will be competent to give sworn evidence unless they don’t have the capacity to understand the obligation to give truthful evidence (s 13(3)), but in which case they may still give unsworn evidence if they meet the conditions in s 13(5)).
• If there is an objection against compellability of a witness, courts must consider s 18(7) and may consider s 18(6) to determine whether it is more desirable to compel that evidence than against the harm of compelling that evidence.
o Reduced capacity (s 14), current domestic partner (s 18 – though subject to s 19)
o Court has responsibility to inform X of their entitlement to make an objection, if it appears to the court that they may have the right to make one (s 18(4))
Other Prelim Issues
FOR WITNESS EVIDENCE
• If a witness may forget something in examination-in-chief, they may revive their memory from a document if they obtain leave (s 32(1)) of the court, considering the factors in s 32(2) and s 192.
o If the witness is a police officer, then they can read from their statement (s 33)
o They can review documents prior to examination-in-chief, but a party can call for those documents (s 34- 36)
• If a witness may become unfavourable, P can make an application under s 38 to cross-examine that witness about matters under s 38(1) and which may be relevant to the witness’ credibility (s 38(3)) if they obtain leave of the court, taking into account matters in s 192 and s 38(6).
o (a) unfavourable
o (c) prior inconsistent statement
▪ A PR (representation made outside of court proceedings) inconsistent with the evidence given by the witness (Dictionary)
• Includes a police statement, any oral or written statement
▪ If the witness doesn’t admit they made the PIS, Prosecution can only present evidence of the statement otherwise from the witness (e.g. presenting the document or calling another witness to give evidence of the prior inconsistent statement) if they meet the conditions in s 43(2) in cross- examination where the statement has to be shown/put to the witness and attention drawn.
▪ May also take into account s 135 and s 137.
▪ Link: Hearsay and Credibility
• In considering whether to give leave and the scope of that leave, the court must consider the matters in s 192(2) o (a) the extent to which giving leave would unduly increase or shorten the length of the hearing
o (b) extent to which giving leave would be unfair to a witness o (c) importance of the evidence in which leave is being sought o (d) nature of the proceeding
o (e) power of the court to adjourn the hearing or make another order or direction in relation to the evidence o Not considering s 192 can lead to appeal (R v Hogan), but if there would be no practical difference in the
grant and scope of leave even if it had been considered, then there is no miscarriage of justice (R v Le)
FOR DOCUMENTS
• Documents may be presented by tendering or by one of the methods in s 48(1) – but must still pass the admissibiltiy hurdles
o Broad definition in Dictionary and includes any part or a copy of the document (Dictionary Part 2 s 8; s 51 abolishes original document rule)
o E.g. bank statements, police reports, business records (48(1)(e)), video audio recordings, maps, photographs, electronic documents, paper documents
• Recordings can be tendered by recording itself or by a transcript (s 48(1)(C))
o Transcript doesn’t need to be indistinct to be tendered (R v Cassar; R v Sleiman) o Note that a transcript might be rejected, or its use limited, pursuant to ss 135-137
▪ There would be prejudice to the accused if there is dispute about whether the transcript is
accurate, because the jury may potentially be primed into hearing what they read on the transcript even if it is not actually in the recording, and thus misuse the evidence.
• Voluminous or complex documents may be presented in summary form if conditions are met under s 50 o Application by pary before hearing, evidence would not otherwise be conveniently examined, the
summary is served on other party with opportunity examine
• Inferences with respect to authenticity can be drawn directly from the document (s 58(1)) – doesn’t require a witness to authenticate it (e.g. for a bank account or business record) unless there is a challenge to authenticity (ACCC v Air NZ)
REAL OTHER EVIDENCE
• E.g. body language and demeanour or witness, physical objects (e.g. weapons, DNA or fingerprints (requires proof of chain or custody))
• View, demonstrations, experiments or inspections may be held if satisfies conditions in s 53(2) and 52(3) o These are considered to be evidence (s 54)
o Jury is permitted to handle exhibits if reasonable and appropriate (Kozul v The Queen)
▪ Jury was allowed to engage with the gun, not just look at it
Is the evidence relevant?
• Evidence is inadmissible unless it is relevant (s56(2)). Relevant evidence is evidence that could “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue” (s55(1)), requiring only a “minimal logical connection between the evidence and the fact in issue” (Goldsmith)
o Fact in issue may be relevant to elements of the offence, including identity (whether the accused was the one who committed the offence) (Smith)
Case Facts Judgement
Smith v the Queen
• Smith was prosecuted for bank robbery based on CCTV photographs taken from inside the bank at the time of robbery
• P called two police officers who gave evidence identifying that Smith was the person depicted in the photographs
NOT RELEVANT
• It would not be rational to use the police’s opinion of identity as since the police was in no better position than the jurors to compare the defendant and the figure in the photographs, it would not be substantially different than what could be reasoned through the jury’s own observations of the
available material.
Evans v the Queen (Heydon, Crennan JJ and Kirby J)
• Armed robbery case with evidence of CCTV footage of the robber being an armed man wearing overalls, sunglasses and a balaclava. There was a particular way that he spoke (with a lisp) and walked
• P asked the accused to get dressed in the exhibits (similar overalls and balaclava found in the accused’s home) and walk around in front of the jury saying words that the robber was heard to have said
RELEVANT
• Considering the low bar of the minimal logical connection, the evidence would rationally affect the probability of identifying the accused as the robber as it enabled the jury to compare the similarities of the appearance and conduct of the accused and with that of the robber in the CCTV footage.
• If the jury found it was similar, that would make it more probable it was the accused who committed the crime.
