EVIDENCE EXAM NOTES
Table of Contents
EXAMINATION OF WITNESSES ... 2
CREDIBILITY RULE ...17
RELEVANCE... 1
HEARSAY ... 3
REAL EVIDENCE AND DOCUMENTS ...30
OPINION EVIDENCE ...43
PROPENSITY OR SIMILAR FACT EVIDENCE ...58
ACCUSED AS A WITNESS ...66
UNRELIABLE EVIDENCE ...71
IMPROPERLY/ILLEGALY OBTAINED EVIDENCE ...86
SUFFICIENCY OF EVIDENCE ... 101
ETHICS, EVIDENCE AND LITIGATION ... 110
RELEVANCE
The first rule about the admissibility of evidence is that it must be relevant to the facts in issue.
MATERIAL FACTS
Material facts are the facts which, if proved, will justify a legal claim/defence being put forward by a party. [Ie. the elements of the CoA/offence/defence]
Material facts are “in issue” when disputed by the parties.
= In civil cases: pleadings, interrogatories & notices to admit operate to narrow & define the material facts in issue.
= In criminal cases: a plea of not guilty theoretically puts all material facts in issue, but the accused may tactically limit what is in issue through his defence story (in order to appear credible). An accused may formally admit facts (s 34 Evidence Act (SA)).
1. If D calls no evidence, no inference of guilt can be drawn from his silence (he has a right to remain silent). But if the prosecution case is strong & D does not testify to something clearly within D’s knowledge, the jury can take this into consideration in drawing inferences.
The material facts in this case are…[the facts that justify P’s claim and D’s defence].
In a criminal offence, the two main elements that make up the P’s case are mens rea (intention) and actus reus (that the accused committed the act). Another other facts such defence etc will also be material.
RELEVANCE
Common law[The evidence] is/is not relevant as it tends to/does not tend to prove/disprove [the material facts]
(Goldsmith v Sandilands).
Requires a “logical connection” to the facts in issue (Papakosmas).
Must affect the probability that the facts in issue occurred (Goldsmith v Sandilands) NOT tenuously linked
Sufficient relevance discretion
R v Stephenson: Where relevant evidence throws little light on the existence of the material facts, a court may as a practical matter refuse to receive the evidence.
= [Although relevance is a natural concept, sufficiency is a legal rule of admissibility]
UEA
Evidence is relevant if it could rationally affect (directly/indirectly) the probability of the existence of a material fact in issue (s 55).
HEARSAY
RULE AGAINST HEARSAY
Common law (state level)Essentially this rule prohibits witnesses repeating out-of-court statements made by others in order to establish the truth of those statements (Subramaniam v DPP; Teper v The Queen)
Eg. “She said ……….” if you are trying to use that statement to prove the truth of what she actually said.
= A testimony in court, or written evidence, of a statement made out of court, where the person is using the statement to prove the matters that have been asserted.
UEA – Commonwealth level
s59 “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact it can reasonably be supposed that the person intended to assert by the representation”
s59 differentiates between assertions of fact which can reasonably supposed to be intended and those which are not (uses the word “representation”, not statements so it automatically captures conduct)
= Eg you do not have to decide whether it is an implied assertion in a statement or implied assertion in conduct if using the UEA, you just have to decide whether it is implied or intended
Why are there hearsay rules?
• Because the person who perceived the evidence should be a witness themselves!
• “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination, and the light which his demeanour would throw on his testimony is lost” (Teper v The Queen)
• Eg. Repeating what someone else said means you cannot test the truthfulness or accuracy of that statement because it came from someone else so cannot be cross examined on
• BUT witness demeanor isn’t so important anymore because there are people from different cultures, different ages, etc. that all behave a different way.
• Truthfulness and accuracy is often tested in XXN to catch people who lie
WHEN IS HEARSAY PERMITTED?
Hearsay can be permitted if used for a non-hearsay purpose or if it satisfies an exception to the rule against hearsay.
If it is for a non-hearsay reason/use, then it will probably be allowed
If the statement falls within an exception to the hearsay rule then it may be allowed
If it is for a hearsay reason/use, then it will probably not be allowed unless under a formal exception to the rule
Why Exceptions to the rule? (Rationale)
• Court may allow hearsay evidence if it can somehow be shown that the evidence is likely to be accurate and reliable.
Examples
the person had no time to reflect and lie
the statement goes against their own interests (because normally when people lie it’s to save themselves [or somebody else])
The person had esoteric knowledge of events (they knew something that they shouldn’t have known)
The “story” does not make sense until told completely (the full story requires hearsay comments)
• People lie and hearsay evidence cannot be tested (eg XXN) so the Courts are reluctant to allow hearsay evidence to be admitted unless there is a good reason for it and/or it is likely to be accurate and reliable
ADMISSIBLE NON-HEARSAY USES
Circumstantial uses of out-of-court statements & using such statements as “original” evidence
• Comments tendered to show a “threat” regardless of the truth of those threats may be admissible for circumstantial use (Subramaniam v Public Prosecutor).
o Guy got in trouble and his defence was duress because they threatened to kill him o So to determine what was said to him the court allowed him to tell it what was said o The information wasn’t admitted for its truth (because we wouldn’t know whether the
people had the capacity to kill D’s children)
o The court only wanted to establish whether the statement actually amounted to duress o So the threats didn’t go in for hearsay use at all, only whether to determine whether it
was capable of amounting to duress Summary of when hearsay may be admissible
Non-hearsay uses:-
Circumstantial use of out-of-court statements & using such statements as “original”
evidence
Prior consistent statements used to support credibility or rebutting accusation of
“recent” fabrication
Prior inconsistent statements used to show lack of credibility Statements with a mix of hearsay & non-hearsay uses
Implied or unintended assertions & conduct Admissible Hearsay exceptions:-
Res gestae (“part of the story”) Dying declarations
Admissions
Statements in documents in civil cases only (s34C EA) Business documents (s52 & s53 EA)
Statements of protected witnesses (s34EA)
