1
70109 – Evidence Exam Scaffolds
Autumn 2020
Table of Contents
No Topic Pages
1 Types of Evidence 2 – 4
2 Calling Witnesses: Competent and Compellability 5 – 6
3 Questioning Witnesses: Witness Examination 7 – 10
4 Relevance 11
5 Hearsay Evidence 12 – 16
6 Credibility Rule 17 – 19
7 Hearsay Evidence for a Non-Hearsay Purpose (s 60 scaffold) 20 – 22
8 Admissions 23 – 24
9 Character Evidence 25
10 Opinion Evidence 26 – 28
11 Tendency Evidence 29 – 31
12 Coincidence Evidence 32 – 34
13 Discretionary/Mandatory Rules 35 – 36
14 Warnings and Directions 37 – 38
15 Privilege 39 – 43
How to use the guide:
This guide is a scaffold for answering exam scenario-based questions. To use this scaffold, you
simply need to go through the applicable topics where relevant. Follow the structure and fill in
the blanks where indicated ([xxx]). By going through the scaffold and elements, you then
derive a conclusion.
2 Types of Evidence
(a) DOCUMENTARY EVIDENCE
The prosecution may seek to adduce the [EVIDENCE] in a documentary form. Part 2.2 of the EA deals with how the contents of documents can be adduced, including [PICK ONE: ORIGINALS, COPIES, EXTRACTS, SUMMARIES] and tendered in Court.
1. Is the evidence a document?
The Dictionary of the EA defines document to mean any record of information and includes: (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols, or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images, or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing, or photograph.
On balance, it is likely that [EVIDENCE] would fall within the definition of a document, as the non- exhaustive definition under the Dictionary EA has a wide ambit. This will become important later in the discussion of representations and hearsay evidence.
Cl 8, Pt 2 of the Dictionary states that there is no longer a requirement for the entire document to be admitted. References to documents as to (a) any part of the document, or (b) any copy, reproduction, or duplicate of the document or of any part of the document, or (c) any part of such a copy, reproduction, or duplicate can be proven by s 48.
2. Is the document available?
According to Cl 5 Pt 2 of the EA Dictionary, a document is unavailable if (a) it cannot be found after reasonable inquiry and search by the party, or (b) it was destroyed by, or on behalf of the party not in bad faith, or by another person, or (c) it would be impractical to produce it during the course of proceedings, or (d) production during proceedings would render a person liable to conviction for an offence, or (e) it is not in the possession or under control of the party and (i) cannot be obtained by a judicial procedure of the court; or (ii) it is in the possession of another party who might know or might reasonably be expected to know that evidence of the contents is relevant; or (iii) it is in the possession of such a party at a time when that party knew or might reasonably be expected to have known that the evidence is relevant.
In the facts, the document is [available/unavailable].
3A. If the document is unavailable, can its contents be proven?
If the document is not available to a party or the existence/contents are not in dispute, a party may adduce evidence as to the content of the document by s 48(4). A party may adduce evidence of contents of document in question that is not available to party, or existence and contents of which are not in issue by (a) tendering a document that is a copy of, or an extract from or summary of, the document in question or by (b) adducing from a witness evidence of the contents of the document in question.
3B. If the document is available, can its contents be proven?
If the document is available, the contents of it can be proven by [PICK ONE]:
• Tender the document itself – s 48(1)
• Adduce evidence as to its contents – s 48(1)(a)
• Tender a copy of it – s 48(1)(b)
3 (b) REAL EVIDENCE
On the facts, the prosecution is attempting to adduce evidence other than through [witness testimony/documents] in the form of an [exhibit/view]. This can be powerful evidence, as the jury are exposed to the site of the murder. Therefore, the court must be satisfied that this view/experiment/demonstration will assist the jury in part of their deliberations. As a result, the Court must be satisfied that the defendant is not unfairly prejudiced and that the evidence can be tested and used by the trier of fact fairly.
1. Adducing Exhibits
Exhibits are physical, tangible objects tendered as evidence (e.g. murder weapons) (s 52). Firstly, the evidence must be relevant, and there must be a basis for finding that the evidence is what it purports or is alleged to be. As evidence usually speaks for itself, the relevance and authenticity of the evidence will ordinarily need to be established by means of witnesses who have personal knowledge of facts, such as how the evidence was obtained or brought into being. In the facts, [EXHIBIT] can be adduced as evidence.
2. Adducing Views
Can the evidence be viewed outside the courtroom?
A demonstration, experiment, or inspection outside a courtroom cannot occur unless an application has been made to and approved by the judge (s 53(1)) and both parties are given reasonable opportunities to attend and the judge/jury are present (s 53(2)).
In deciding whether to authorize a view, the court may consider the following (s 53(3) / DPP v Farquharson):
• Whether the parties will be present – s 53(3)(a)
• Whether it will assist the court in resolving a fact in issue – s 53(3)(b)
• The danger that the evidence might be unfairly prejudicial might be misleading or confusing, or might cause an undue waste of time – s 53(3)(c)
• Demonstration: the extent to which the D will properly reproduce the conduct or event
• Inspection: the extent to which the space or thing to be inspected has materially altered
• Cost of travel to the site – Swan v Spiropolous.
When conducting an experiment, the following conditions must be satisfied:
• Prove that the conditions and circumstances are similar to those at the time of events.
o Test: need not be identical but substantially similar (DPP v Farquharson).
When conducting a view, the following rules are applicable:
• A jury can draw any inference from what it sees, hears, or otherwise perceives during the view (s 54).
• The court cannot conduct experiments during deliberations (s 53(4); Kozul v The Queen).
• A jury member cannot ask to visit or visit the site while deliberating (R v Skaf).
Can the evidence be viewed inside the courtroom?
(a) Demonstrations – A witness demonstrates something that they referred to in their evidence.
This may be performed alone or in conjunction with an inspection.
(b) Experiment – procedure carried out in order to test a hypothesis.
4 Relevance
Admissibility is a three-stage process. Firstly, is the evidence relevant? If relevant, then the evidence will be admissible (s 56(1)), unless there are exclusionary rules; and, if no exclusionary rules apply, should the trial judge use discretion to exclude the evidence?
1. Is the evidence relevant?
Evidence is relevant where if it were accepted, it could rationally affect (directly or indirectly) the probability of the existence of a fact in issue (s 55(1)). A fact in issue is the elements of an offence (if a criminal matter) or the facts outlined in pleadings or any facts necessary to make out the legal cause of action and legal defence (civil matter). There is a low threshold for the test of relevance (Papakosmas). An evidence is not 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 (s 55(2)).
In the facts, the evidence is admissible because it could rationally affect (directly or indirectly) the probability of the existence of a fact in issue. This material is likely to be relevant because it could assist the trier of fact to understand the existence of a fact in issue [APPLY FACTS]. The threshold for relevance is relatively low (Papakosmas) and therefore the material would satisfy s 55, and, as a result, it would be admissible subject to any exclusions or discretions (s 56).
2. Are there any exclusionary rules that apply?
Since the evidence is relevant, then it will be admissible (s 56(1)) unless exclusionary rules apply.
(a) General discretion to exclude evidence (s 135)
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.
(b) General discretion to limit use of evidence (s 136)
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.
(c) Exclusion of prejudicial evidence in criminal proceedings (s 137)
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.
(d) Exclusion of improperly or illegally obtained evidence (s 138)
Evidence that was obtained (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.
3. If no exclusionary rules apply, should the trial judge use discretion to exclude the evidence?
5 Credibility Rule
1. Introduction
Credibility evidence concerns the credibility of a witness and their ability to remember facts. Pursuant to s 101A, [EVIDENCE] is considered to be credibility evidence as it goes towards (a) establishing the witness’ ability to be truthful and (b) establishing the witness’ ability to give evidence about the things they have perceived.
Prima facie, the evidence that relates to [WITNESS]’s credibility is inadmissible (s 102). There are exceptions to this rule, however it is first necessary to determine whether the evidence is relevant or not and subsequently consider the credibility rules (Adam).
2. Is it relevant?
On balance, the evidence is likely to be relevant because it could assist the trier of fact to understand the existence of a fact in issue, which is [FACT IN ISSUE]. The threshold for relevance is relatively low (Papakosmas), therefore s 55 would be satisfied and as a result, the evidence would be admissible subject to any exclusions or discretions (s 56).
While credibility evidence does not have a direct bearing on the facts in issue, often being characterized as ancillary evidence, anything which affects the probability that the witness is telling the truth affects the probability of the existence of the facts to which the witness is testifying (s 55(2)).
In the facts, [CREDIBILITY EVIDENCE] is relevant because [FACTS].
3. What is it relevant for? [PICK ONE]
(a) Relevant for credibility purpose only (s 101A(a))
Pursuant to s 101A(a), [EVIDENCE] is relevant only because it affects the assessment of the credibility of [WITNESS] and therefore the credibility rules apply (Adams).
(b) Relevant for dual purpose – credibility & hearsay (s 101A(b))
Pursuant to s 101A(b), [EVIDENCE] is relevant for both the credibility purpose as well as some other purpose for which it is not admissible or cannot be used. Therefore, the credibility rules apply (Adams).
(b) Relevant for dual purpose (e.g. credibility & hearsay)
Pursuant to s 101A(b), [EVIDENCE] is relevant for both the credibility purpose as well as another purpose and is admissible for the non-credibility purpose. Therefore, the credibility rules do not apply (Adams).
4. If relevant, are there any exceptions that apply?
(a) Evidence adduced in cross-examinations (ss 103 & 104)
In the facts, the [EVIDENCE] was adduced through the cross-examination of [WITNESS]. S 103(1) provides that the credibility rule does not apply if evidence adduced in cross- examination could substantially affect the credibility of witness. Pursuant to the tests in Shamouil and Lodhi, the [EVIDENCE] is capable of substantially impacting the assessment of the credibility of the witness. Pursuant to s 103(2), whether the evidence could substantially affect the assessment of the credibility of the witness is dependent on (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
6 acts or events to which the evidence relates were done or occurred. Thus, the credibility exclusionary rule will not apply, and the credibility evidence is to be admitted.
In criminal matters, s 104 must be read together with s 103. S 104(2) states that 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 pursuant to s 192. However, pursuant to s 104(3), that 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/her evidence relates, or (c) has made a prior inconsistent statement. Also, per s 104(4), leave will only be granted to the prosecution for cross-examination if evidence by the defendant has been admitted that: (a) tends to prove that the witness called by the prosecutor has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness’s credibility (defendant’s evidence). Subsequently, a co-defendant cannot cross examine on evidence unless the evidence relates to that defendant and has been admitted (s 104(6)).
(b) Evidence in rebuttal of denials (s 106)
Allegations denied under cross-examination may not be rebutted if the evidence is only relevant to the credibility of the witness. In such circumstances, the answer given by the witness is final and you are unable to call evidence from another witness to rebut the denial. However, under s 106, you may rebut the evidence of the witness through the use of evidence from another source.
In the facts, credibility evidence has arisen through some source other than cross examination, which is [EVIDENCE]. This is evidence used to rebut the witness’ denial.
Pursuant to s 106(1), the credibility rule does not apply to [EVIDENCE] that is relevant to [WITNESS]’s credibility because, in the cross examination of the witness, (i) the substance of the evidence was put to [WITNESS]; and (ii) [WITNESS] denied or did not admit to or agree to the substance of the evidence, and (b) the court gives leave to adduce the evidence.
Exception to leave rule
S 106(1)(b) states that the court must give leave to adduce the evidence under s 106. However, s 106(2) states that leave 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.
(c) Evidence to re-establish credibility (s 108)
Credibility rule does not apply to evidence adduced in re-examination of a witness. It does not apply to evidence of a prior consistent statement of a witness if (a) the evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested that the evidence has been fabricated/re-constructed (deliberate or otherwise) and the court gives leave to adduce the evidence of the prior inconsistent statement (s 108(3)).
(d) Evidence of person with specialized knowledge (s 108C(1))
Credibility rule does not apply to evidence given by a person concerning credibility if (a) the person has specialized knowledge based on training, study, or experience; and (b) the evidence is an opinion of the person that (i) is wholly or substantially based on that knowledge; and (ii
7 Character Evidence
Introduction
Character evidence relates to a defendant’s personal qualities, reputation, or social standing. It is relevant because it rationally affects the probability of the defendant committing an offence (TKWJ v R). It can help the jury to understand that the defendant is unlikely to commit the offence because he is a person of good character.
s 109 & s 110 application (can it be adduced?)
Per s 109, rules relating to character evidence only apply when it (a) relates to the defendant; and (b) in criminal proceedings.
Per s 110, the defendant can adduce evidence to prove either directly or by implication that they are of good character either (a) generally; and/or (b) in a particular respect.
However, leading good character evidence is often associated with risks. Allows the character evidence to be stated in either a general, global form or a specific format (i.e. D wants to show generally good, never been charged/convicted, or D wants to show that D has never assaulted somebody with ‘anything but their hands’.) The effect of this splitting of character (ss 110(2) and (3)), when D leads this evidence, is that it allows P or CD to lead evidence to negative that. The evidence P/CD leads to negative what D has said must conform to the parameters set by the accused (R v Zurita).
Cross-examination (s 112)
Although the defendant has led their character evidence and the prosecution has lead contradictory evidence which negatives that, if prosecution wants to cross-examine the defendant, they must seek leave. In doing so, the minimum factors that the court must take into account when exercising this discretion are as follows:
a. Extent of possible effects to length of hearing
b. Extent to which granting/denying leave may be unfair to party or witness c. Importance of evidence
d. Nature of proceedings e. Possibility of adjournment
Advanced rulings (s 192A)The defendant may seek an advanced ruling as to whether or not they are likely to be cross-
examined on their good character. This will afford a forensic advantage as the defendant
might decide not to run good character evidence/put material before the court. Under s 192A,
this provision provides that the defendant may seek an advance ruling as to whether or not the
court will grant leave to the prosecution to cross-examine them on their good character. That
application can be made by the defendant and there are no rules which say the court have to
give that ruling or be bound by it. It is just an option available to the court and they are not
obliged to give such a ruling (TKWJ v The Queen).
8 Discretionary/Mandatory Rules
1. Introduction
Subject to the following discretionary/mandatory exclusions, the material will be admissible. The material may still be excluded on the basis that its probative value does not outweigh any prejudicial effect which is attached to the material. However, while [INSERT SECTION] provides the trial judge with guidance, it is still an exercise of discretion.
2. Discretionary Rules - [PICK WHICHEVER APPLIES]:
(1) General Discretion to Exclude Evidence (s 135)
Pursuant to s 135, 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. The requirement that the evidence is substantially outweighed is a high threshold placed on the party seeking to have the evidence excluded. It is weighted in favour of admission.
(a) Probative value assessment
“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. In the facts, [EVIDENCE]
is of probative value as it could rationally affect the assessment of the [ILLEGAL ACT]
occurring as [FACTS].
[PICK WHICH ONE APPLIES – B1 – B3]:
(b1) Unfairly prejudicial – s 135(a)
Unfair prejudice is where there is a danger that the factfinder may use the evidence to make a decision on an improper, perhaps emotional basis – on a basis that is logically unconnected or appeals to the factfinder’s sympathies or triggers other human action reactions. These include evidence that appeals to the factfinder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other human action reactions (Papakosmas).
In the facts, [EVIDENCE] is unfairly prejudicial as it [FACTS].
(b2) Misleading or confusing – s 135(b)
Evidence is misleading or confusing to a jury and it is impractical or impossible for a trial judge to give directions that would prevent that confusion (Hughes Aircraft Systems International v Airservices Australia). If directions cannot clarify to the jury how to avoid being misled or confused, it is more appropriate to exercise the discretion to exclude the evidence altogether.
In the facts, [EVIDENCE] is misleading or confusing as [FACTS].
(b3) Cause or result in undue waste of time – s 135(c)
This will occur where the court considers the sheer volume of material and time constraints of hearing the material. Often, evidence will have some probative value, but if that evidence has been substantially presented to the jury by other witnesses, or in other ways, it may unduly waste the court’s time to hear further evidence on that subject. This is widely applied in relation to voluminous financial reports and statistical data. In Matthews v SPI Electricity, it was held
9 Warnings and Directions
1. Introduction
The purpose of judicial warnings is to prevent miscarriages of justice from occurring because of potentially unreliable evidence. In certain circumstances, trial judges are required to warn jurors of the need for caution when assessing evidence that may be unreliable (s 165), or from a child if it may be unreliable because of the child’s age (s 165A), or where there has been significant delay that may lead to significant forensic disadvantage to a defendant (s 165B).
2. Warnings and Discretions - [PICK WHICHEVER APPLIES]:
(1) Unreliable evidence (s 165)
Warnings may be made under s 165 in relation to unreliable evidence. Under s 165, evidence of a kind that may be unreliable include (not exhaustive):
(a) Evidence in relation to hearsay evidence or admissions (b) Identification evidence
(c) Evidence where reliability may be affected by age, health, or injury
(d) Where witness might reasonably be supposed to have been criminally concerned with events giving rise to proceedings (e.g. evidence given by a witness who may have been criminally involved – e.g. accomplice)
(e) Evidence by witness who is a prison informer
(f) Oral evidence of questioning by investigating official that has not been signed or acknowledge by the defendant (e.g. admissions).
Pursuant to s 165(2), if there is a jury and the party requests so, the judge may warn the jury that (a) the evidence is unreliable, and (b) inform them of matters that may cause the evidence to become 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. However, the judge does not need to comply if there is a good reason for not doing so (s 165(3)) and the judge may not warn in relation to child’s reliability on the basis of their age (s 165(6)).
In the facts, the evidence posed is unreliable as [FACTS]. Subsequently, [PARTY] may request the judge to warn the jury that the evidence is unreliable and inform them of matters that may cause the evidence to become unreliable and therefore, warn the jury of the need for caution (s 165(2)). Warnings must be specific, and made upon the request of a party, although the trial judge need not give the warning if there are good reasons for not doing so. If there are good reasons, the warning is mandatory (R v Flood).
(2) Warnings in relation to children’s evidence (s 165A)
On the facts, [NAME] is a child and has given evidence before the jury. Therefore, pursuant to s 165A(1), the judge must not:
(a) Warn the jury or suggest to the jury that children as a class are unreliable witnesses
(b) Warn the jury, or suggest the jury that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny than the evidence of adults
(c) Give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child
(d) In the case of a criminal proceeding, give a general warning to the jury of the danger convicting on the uncorroborated evidence of a witness who is a child.
With the above in mind however, under s 165A(2), [PARTY] is able to request that the judge:
(a) Inform the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and
10 (b) Warn or inform the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it,if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.
[APPLY TO FACTS].
(3) Delay in prosecution (s 165B)
The facts show that the victim has delayed bringing proceedings against the defendant for [X] years.
Defendant may bring an application due to delay in reporting of the crime. If the trial judge is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must caution the jury and explain the legal significance of the delay and how this impacts on the veracity and accuracy of the evidence. “Significant forensic disadvantage” includes (a) the fact that any potential witnesses have died or are not able to be located, or (b) the fact that any potential evidence has been lost or is otherwise unavailable (s 165B(7)). The trial judge can make comments that suggest the delay goes to the victim’s credibility.
[APPLY IF APPLICABLE]:
• Groundstroem v The Queen: Defendant’s lack of detailed recollection of the incidents and his inability to test whether there was “blood on the sheets” is insufficient to count as a significant forensic disadvantage.
• PT v The Queen: The concept of delay is relative and judgmental.
• Jarrett v The Queen: A good reason not to give a forensic disadvantage direction – that the accused threatened to commit suicide if the complainant went to the police.
[APPLY TO FACTS].
(4) Common law directions
(a) Longman Direction – (Longman v The Queen)
A warning that complainant evidence could not be adequately tested, and because the passage of time, it would be unsafe or dangerous to convict defendant on uncorroborated evidence of the complainant alone.
(b) Murray Direction – (R v Murray)
Warning that where the crown relies on one witness only, the jury, before acting on the evidence of that witness, must scrutinize the evidence with great care.
