Evidence Law – LAWS 2351
Contents
Admissibility of Evidence... 5
1. Relevance: 55, 56 ... 5
i. ‘Fact in Issue’ ... 5
ii. Timing (+ Res Gestae) ... 6
iii. Collateral Issues ... 6
iv. Relationship/Background Evidence ... 6
v. Context evidence ... 7
vi. Transactional Evidence ... 7
2. Mandatory & Discretionary Exclusions: 135, 136, 137 ... 8
2.1 Probative Value ... 9
2.2 Unfair Prejudice ... 9
2.3 Balancing exercise ... 9
3. Credibility... 11
3.1 Credibility Evidence: 101A ... 12
3.2 Credibility Rule: 102 ... 14
3.3 Credibility Exceptions: 103 – Cross-examination ... 14
3.4 Credibility Exceptions: 106 – Rebutting Denials with new evidence ... 15
106(2)(a). Bias & Motive for being untruthful ... 16
106(2)(b). Prior Conviction ... 16
106(2)(c). Prior Inconsistent Statement (PIS) ... 16
106(2)(d). Inability to be aware of matters to which their evidence relates ... 17
106(2)(e). Knowingly /recklessly made a false representation while under obligation to tell the truth . 17 3.5 Exception: 108 – Re-establishing credibility (Re-Examination, PCS) ... 17
3.6 Exception: 108A – Credibility of persons who are not witnesses ... 17
3.7 Exception: 108C – Expert knowledge ... 18
4. Hearsay: 59 ... 19
4.1 Four requirements: ... 21
I. Evidence is a ‘previous representation’ ... 21
II. Previous representation was made by a person ... 21
III. Previous representation is adduced in court to prove existence of a fact ... 21
IV. Person who made representation intended at the time to assert the existence of that fact ... 22
4.2 First-hand hearsay: 62 ... 22
i. Exception: Contemporaneous statements about a person’s health: 66A ... 23
ii. Meaning of Unavailability ... 23
iii. Exception: Criminal proceedings if maker unavailable: 65 ... 24
iv. Exception: Criminal proceedings if maker is available: 66 ... 25
4.3 Other Exceptions to the Hearsay Rule ... 27
I. Hearsay rule waived after evidence is admitted for another purpose: 60 ... 27
II. Exception: Competency of person who made representation: 61 ... 28
4.4 Second-hand hearsay ... 29
I. Exception: Business Records: 69 ... 29
II. More Exceptions: 70-74 ... 30
4.5 Reasons for the Hearsay Rule ... 31
5. Tendency and Coincidence ... 32
5.1 Tendency: 97 ... 32
i. Notice requirement ... 34
ii. Significant probative value ... 35
5.2 Coincidence Rule: 98 ... 36
i. Notice requirement ... 39
ii. Significant probative value ... 39
5.3 Further restrictions (probative value): 101 ... 41
5.4 Use of tendency/coincidence evidence for other purposes: 95 ... 42
5.5 Dangers of tendency/coincidence evidence ... 42
6. The Defendant (further protections) ... 43
6.1 Credibility Protections: 104 ... 43
6.2 Character Protection ... 44
6.3 Co-defendant provisions ... 44
7. Character: 110 ... 46
7.1 Character evidence about the Accused: 110 ... 46
7.2 Character evidence about a Co-Accused: 111 ... 47
8. Opinion ... 48
8.1 Opinion rule: 76 ... 49
8.2 Exceptions to the opinion rule: 77, 78, 78A, 79, 80, 108C ... 49
8.3 Reliability of Opinion Evidence ... 51
9. Identification Evidence ... 53
9.1 Definition of identification evidence ... 53
9.2 Visual identification: 114 ... 55
9.3 Picture identification evidence: 115 ... 57
9.4 Judicial warning: 116, 165(1)(b), 108C ... 59
Adducing Evidence ... 61
10. Witness Questioning and Cross Examination ... 61
10.1 Competence: 12, 13, 14 ... 61
10.2 Compellability: 17, 18, ... 62
10.3 Evidence in Chief: 32, 33, 37, 38... 63
10.4 Evaluating witnesses – lying, unfavourable witnesses, XX your own witness ... 65
11. Presumption of Innocence ... 71
11.1 The Accused’s right to silence ... 71
11.2 Jones v Dunkel ... 72
12 Fair Trial ... 73
12.1 Prosecution’s duty of fairness ... 73
NSW Bar Rules: Prosecutor’s duties ... 74
13 Disclosure and Standard of Proof ... 76
13.1 Disclosure: Bar Rules 86, Criminal Procedure Act 141-146 ... 76
13.2 Standard of Proof ... 78
14 Judicial Notice ... 80
15 Judicial Warnings ... 81
15.1 Unreliable Evidence: 165 ... 81
15.2 Children’s evidence: 165A ... 82
15.3 Delay: 165B ... 83
Longman Warning ... 84
15.4 Judicial Directions to the jury ... 84
16. Leave ... 85
1. Relevance (55), 2. Exclusionary rules,
3. Discretionary exclusions (135, 137).
Admissibility of Evidence
1. Relevance: ss 55, 56
Section of the Evidence Act
55
Relevant evidence (logical relevance)(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.
56
Relevant evidence to be admissible(2) Evidence that is not relevant in the proceeding is not admissible.
57
Ct can accept relevance ‘provisionally’58
Ct can draw inferences as to the relevance of evidence (eg, as to its authenticity or identity).Papakosmas. Evidence must be relevant to be admissible.
Potential relevance: Whether the ev has potential to affect the fact in issue. Determined by the judge.
Actual Relevance: not able to be known until all ev is adduced. Determined by the jury.
i. ‘Fact in Issue’
• Definition: ‘fact in issue’ (“FII”) – A FII 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.
• Generally, a FII is an element of the offence charged, but can be a matter of mixed fact and law (eg, negligence) and prerequisite issues that must be determined. R v Cornwall per Howie J
• When assessing whether a logical connection exists, a judge should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection.
An indirect connection is sufficient. R v Chanthovixay; Neal v The Queen Case Summaries
Smith
(Mundarra) Issue: Is it relevant that police witnesses could identify the accused in the CCTV footage?
Held: The police ev was not relevant as it would not rationally affect the assessment of the probability of a fact – it was not knowledge beyond what the jury could see for itself.
Evans v R Facts: Accused put on balaclava, overalls and sunglasses to perform demonstration.
Issue: Relevant?
Held: Not relevant to FII (does not help jury to determine whether he was the robber).
Also, dressing the accused like the robber may have depreciated his credibility.
• Inadmissible, as overwhelmingly unfairly prejudicial (137).
Neal v R Issue: Is evidence of accused’s sexless marriage relevant to a child sexual assault charge?
Held: (majority) No, evidence excluded.
Ev had minimal relevance, low probative value and propensity for prejudice, because it went to motive for seeking sexual gratification outside the marriage and sex acts with children are of a different character to those bw adults.
Cornwell Facts: Body found in a locked room with a fatal bullet to the head.
Issue: Is it relevant that the accused was outside the room just before the time of death in possession of a fully loaded revolver?
Held: Yes. Relevant to proving FII (whether the accused shot the deceased).
• These facts show opportunity, means and motive. Even though these facts are not
elements of the offence, they support proof of the elements of the offence.
Papakosmas Facts: Complainant ‘complained’ immediately after the incident of rape to her friends.
Issue: Is her complaint relevant to credibility and a FII?
Held: Matter of a subjective opinion.
Burton Issue: Whether ev suggesting that the complainant was sexually interested in others, is relevant to show that she consented to sex with Burton.
Held: Irrelevant that she was interested in sex with another person.
ii. Timing (+ Res Gestae)
• Close contemporaneity is said to enhance the reliability of statements or conduct because they are likely to be unguarded, ungarnished and spontaneous. (Common Law) Papakosmas v R
• Res gesae: the events, circumstances, remarks, etc. which relate to a particular case, especially as constituting admissible evidence in a court of law.
• If ‘the drama, leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received’: Gaudron and Kirby JJ referencing Ratten v R.
iii. Collateral Issues
• A collateral fact of ‘negligible significance’ will likely be a collateral issue and IRRELEVANT.
• Location of the cricket arena was a collateral fact because Goldsmith had already conceded that he had played cricket (the FII was his back injury). Goldsmith v Sandilands
iv. Relationship/Background Evidence
• Evidence admitted for the purpose of contextualising other evidence.
• Eg, Reveals the nature of the relationship between a victim and the defendant.
• Eg, Ev relevant to motive.
• May be admitted as it is relevant to the Defendant’s state of mind, or the victim’s fear of the Defendant or Defendant’s motive.
• Admitted for a non-tendency purpose.
• 95. Judicial warning must be given to jury wrt proper use of the ev!
R v Clark Facts: Evidence that Clark had hit Lock previously, had difficult business dealings with him, had been upset at seeing Lock in bed with his mother and that Lock had threatened damage to Clark’s property
Held: Ev was admissible as it was relevant to motive and likelihood of committing the offence Conway v R Facts: Evidence that Conway had put heroin in his wife’s coffee
Held: Admissible as ev was relevant for motive, and threw light on their relationship. It was irrelevant that he had not been charged for that crime at all.
R v WJT Held: Ev may be relevant to explain why the complainant feared the accused
Harriman v R Held: Ev may be relevant to show why a complainant did not show distress or continued to submit to the accused
v. Context evidence
• The role of ‘context evidence’ is to place a specific allegation in the broader context of the complainant’s whole account wrt the defendant. Its purpose is to understand the complainant’s presentation of their ev.
• Context ev is typically admitted in child sexual assault cases to explain the complainant’s actions.
The context ev shows that it is a pattern of abuse that she has suffered, which is why she may present it as an unremarkable occurrence.
Gipp v R (CL case)
Held: Explains why the victim may be matter-of-fact about their abuse.
• Ev relevant to explain lack of surprise at being called to gratify the appellant’s sexual desire, a matter of fact recounting or the failure to mention an incident to her mother KTR v R Held: Ev relevant to overcome a false impression that might otherwise be conveyed to the
jury that the incidents he or she has described ‘came out of the blue’.
DJV v R Held: Ev relevant to explain why complainant made no reaction or complaint at the time.
• Distinguish context and relationship evidence, given their different purposes: SKA v R.
• Context ev is separate from tendency ev.
• 95. Needs a judicial direction to the jury that it must only be used in a narrow way.
vi. Transactional Evidence
• A series of events that should be considered as one transaction. Integral parts of connected events.
• “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”: O’Leary v R.
o Eg, the drunken orgy and repeated acts of violence were part of the same transaction, of which the alleged murder was an integral part: O’Leary.
• Such evidence helps to explain:
o The totality of an event, making it clearer or more understandable;
o The state of mind of parties (in this way it is a type of background evidence).
• Not tendency evidence.
• 95. The trial judge must give a distinct warning that the ev can only be used in certain way.
O’Leary v R Facts: Evidence of an accused’s violent behaviour on the night before a murder.
Issue: Could O’L’s violent conduct be adduced in ev?
Held: Yes. Relevant to his state of mind. The transaction of events in which the murder took place could not properly be understood if isolated from the other events in the transaction.
• Where there is a connected series of events that might be considered to be part of one transaction, the jury should be made away fo the entirety of that transaction.
R v Adam Facts: Evidence that Adam was involved in an argument before a brawl with the deceased Held: Relevant as it was an integral part of a series of connected events proximate enough
to permit inference to be drawn about the accused’s state of mind R v Serratore Facts: Evidence of conversations within a volatile relationship
Held: Relevant even though they occurred 5 months before.
Time will be a factor – the amount of time that will break the continuum will be dependent on circumstances of the case.
Nguyen v R Facts: Evidence of a second melee /scuffle shortly after the incident in question Held: Inadmissible, as it was not part of the same transaction.
2. Mandatory & Discretionary Exclusions: ss 135, 136, 137
Balancing probative value against potential unfair prejudice: R v JG.
90 Fairness Discretion
– Discretion to exclude admissionsIn a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
135
Discretion to exclude evidence (legal relevance)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.
136
Discretion to limit evidenceThe 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.
137
Exclusion of prejudicial evidence (mandatory) – criminal proceedingsIn 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.
• Eg, a 25 yo conviction would probably be excluded.
138
Discretion to exclude improperly or illegally obtained evidence (1) 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 ev outweighs the undesirability of admitting ev that has been obtained improperly (in the way in which the ev was obtained).
• Balancing two public policy interests – does the effect of the illegality/impropriety on the administration of justice outweigh the legitimate public interest in convicting the guilty?
2.1 Probative Value
• Dictionary: ‘Probative value’ means ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’ (language of 55)
o The potential probative value of evidence is a matter for the judge: Shamouil.
Ie, judge considers the position most favourable to party tendering it: R v Burton.
Predictive, evaluative role – Judge assesses probative value on the basis of
information available at the time. Prediction of the potential value of the ev: Burton o Judge does not take into consideration issues of reliability, credibility or weight of the
evidence (issues for the jury). Should assume when balancing that the jury will (ultimately) interpret evidence of probative value as being reliable: Burton
2.2 Unfair Prejudice
• Definition: ‘Unfair prejudice’ “means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way”: Papakosmas
o Only prejudicial if there is a real risk of it being unfair.
o Ie, where it may lead a jury to adopt an illegitimate form of reasoning, or give the evidence undue weight. R v Yates
o Where there is a “danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis. Thus, evidence that appeals to the fact-
finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact finder to base his decision on something other than the established propositions in the case: ALRC Report 1985
Reactions that distract from the logical import of the ev.
o Evidence is not unfairly prejudicial merely because it will make it more likely that the defendant will be convicted: Papakosmas v The Queen
o Could correct unfair prejudice by making a direction to the jury.
*
2.3 Balancing exercise
• 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: Pfennig v R
o Diff to weigh prejudicial effect and probative value as they have no standard of comparison.
• The balancing required in assessing the danger of unfair prejudice protects the accused (NSW).
• Should the judge take reliability of the ev into account?
o NSW: No, relevance is not concerned w reliability (Papakosmas).
The evaluative task requires the judge to only predict the probative value of the ev
‘at its highest’, (not predicting what the jury should decide). It establishes the probative value of the evidence w its greatest logical connection. (Ie, take the interpretation that best suits the party adducing it.)
o VIC: Yes, the definition of ‘probative value’ request the court to measure the extent, weight or reliability (or unreliability) of the evidence.
Examples
Reasons for exclusion of evidence:
R v Yates The jury may give more weight to a particular piece of evidence than it deserves. [137]
Papakosmas The jury may over-react to ev in an illogical or irrational manner. [137]
Taylor The jury may rely upon it on a basis logically unconnected to the issues in the case. [137]
Aytugral Facts: A DNA profile was expressed in its exclusion percentage (99.9%) rather than its frequency ratio (1 in 1600 people).
Held: This was NOT unfair prejudice. Any jury should contain at least 1 person who could tell the rest that exclusion percentage had the same meaning as the frequency ratio. The sources of measurements were explained to the jury. [137]
DPP v JG Facts: JG charged with murder of CV’s mother.
Issue: Were recorded interviews with CV admissible where she had undertaken hypnosis between the first and second interview?
Held: Admissible, NOT unfair prejudice. Ev had significant probative value.
• Issues of suggestibility and reliability of hypnosis ev is an issue for jury (not judge).
Suggestibility could be addressed by XX. A warning under 165 would suffice.
Dyldam v Jones Facts: On the penultimate day of trial, the defendant adduced new ev of a journal.
Held: 135(c). This ‘caused or resulted in undue waste of time’ as it would require witnesses to be recalled who had already given evidence.
• Also, unfair prejudice, as there was no opportunity to test evidence properly – unfair prejudice where maker of the hearsay rep is available to give ev but has not been called (would require significant adjournment).
Stephenson Facts: Negligent driving, 2-car collision at red light, 1 car ran red light. All occupants of other car killed, driver unknown.
Issue: Were blood alcohol readings (low) of the occupants of the other car relevant?
Held: No, not logically or legally relevant to whether Stephenson was culpable. Very tenuous link bw the condition of the unknown driver of the other car and FII.
Papakosmas Facts: Complainant ‘complained’ immediately after the incident of rape to her friends.
Issue: Relevance of telling her friends?
Held: Relevant to FII (increase the probability that the rape occurred) and her credibility.
[66(2) Exception to h/s rule – rape was fresh in her memory when she told friends.]
• Highly probative of proof of sexual assault, as occurred directly after the event.
Ireland Issue: Could ev be excluded where it is obtained in breach of the accused’s rights?
Held: Yes (138). “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price”.
• The undesirability of curial approval of illegality means that the ev may be excluded.
Marijancevic 138. Most serious where conduct known to be illegal was pursued by the police for the purpose of obtaining a benefit that could be not be obtained by lawful conduct.
Gedeon Considerations of ‘high public policy’: “whether effect of illegality /impropriety on the admin of justice outweighs the legitimate public interest in conviction of the guilty.”
3. Credibility
Is it credibility evidence?
RULE: 101A. Is the ev relevant ONLY wrt a W's credibility?
OR is the ev relevant for credibility + a non-credibility purpose (FII)?
CREDIBILITY EV Relevant ONLY to
credibility
102. Credibility rule applies > ev excluded.
Unless exception.
103. (in XX). Most likely exception
106. (after XX) Exception: Rebutting
W's denial.
108(1). Re-exam 108(3). PCS
NON-CREDIBILITY EV Relevant to credibility + Relevant to a FII
(but inadmissible)
102. Credibility rule applies > ev excluded.
Unless exception.
66. Hearsay (event must be
‘fresh in the memory’)
43(2). PIS - XX witness on inconsistency 135 / 137
Exam:
1. s.55. Is the evidence relevant? Ie, to credibility. Also to FII? > 56 applies.
2. 101A. Is ev relevant to credibility of a witness? > Satisfies 101A.
o NOT ‘credibility ev’ (under 101A) if relevant to: credibility + FII, but is ADMISSIBLE for its NON- CREDIBILITY purpose.
So no need to seek exception to 102, as the ev is already admissible to prove the FII!
A cross-examiner can question the witness of the apparent inconsistency.
3. 102. Credibility ev about a witness is not admissible. > 102. applies.
o Inadmissible if it:
Is only relevant to a witness’ (or some other person’s) credibility (101A(a)); or
• Relevant solely to credibility if also relevant to FII +admissible for non-credibility purpose.
Has relevant beyond credibility, but is inadmissible for its non-credibility purpose.
• (due to being excluded based on hearsay, opinion, admissions, tendency or coincidence);
• This means the ev is solely admissible for its credibility purpose. 101A(b).
4. Exceptions to 102: Ask Witness in XX.
- 103. They admit it.
- 106. They deny it. then AFTER XX, can rebut their denial by adducing ev to prove them wrong.
5. 103. Exception to credibility rule: ev adduced in XX. > Likely to satisfy 103,
o …the test being substantially affect the assessment of the credibility of the witness. Ie, such high probative value that witness’ credit cannot be determined adequately without it”: Lodhi
o 104(2). Must seek leave (192).
Satisfied if leave is given by the Ct / no leave is nec (bias, prior convictn, PIS, perjury).
6. 106. In XX, substance of ev put to witness + they deny /do not admit it Then may adduce ev to rebut o 192. Leave required.
o 106(2): LEAVE not required: bias, prior conviction, PIS, perjury.
7. 60. If XX is permitted, ev that is inadmissible for its non-credibility purpose may be ADMISSIBLE to prove the facts that the ev/statement/doc intended to assert!
3.1 Credibility Evidence: s 101A 101A
Credibility EvidenceCredibility 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 /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.
