MLL334 – EVIDENCE LAW
Summary Notes
Table of Contents
MLL334 – EVIDENCE LAW ... 1
Summary Notes ... 1
WEEK 1 – INTRODUCTION AND OVERVIEW ... 8
Chapter 1: The Nature of Evidence Law and the Uniform Evidence Acts ... 8
1.1 The nature of evidence law ... 8
1.2 The objectives of evidence law – truth, discipline, protection ... 8
1.2.1 Evidence law is procedural, not substantive ... 8
1.2.2 Truth is an important objective ... 8
1.2.3 Disciplinary principle – arguably flawed ... 8
1.2.4 Protective principle ... 8
1.2.5 Other objectives... 8
1.3 Looking forward to reform of evidence law ... 9
1.4 The existing law ... 9
1.4.1 Background to the Act, applies in…Vic ... 9
1.4.2 The Acts are not always identical in structure and interpretation ... 9
1.5 Structure of resolving evidential issues ... 9
s.165 - Unreliable Evidence ... 10
Chapter 2: Overarching concepts: Role of judge and jury, burden and standard of proof and types of evidence ... 12
2.1 Introduction ... 12
2.2 The nature of court proceedings and the roles of the judge and jury ... 12
2.2.1 Rules of evidence operate the same in each court venue ... 12
2.2.2 Rules of evidence are stricter in criminal cases ... 12
2.2.3 Adversarial process ... 12
2.2.4 Order of proceedings and witnesses ... 12
2.2.5 Fact finder is either judge or juror ... 12
2.2.6 Voir dire – procedure for determining admissibility of evidence ... 12
2.3 Burden and standard of proof ... 13
2.3.1 Burden (or onus) of proof ... 13
2.3.2 Standard of proof ... 13
Civil Proceedings – legal burden ... 13
2.3.3 Criminal cases – legal burden ... 13
2.3.4 Admissibility of evidence – balance of probabilities ... 14
2.3.5 Evidential burden ... 14
2.4 Types of evidence ... 14
2.4.1 Verbal, documentary and physical evidence ... 14
2.4.2 Facts in issue ... 14
2.4.3 Direct and circumstantial evidence ... 15
2.4.4 Facts that do not need to be proved by evidence ... 15
2.4.5 Sworn and Unsworn Evidence ... 15
WEEK 2: VERBAL EVIDENCE ... 18
Chapter 3: Verbal Evidence: Witnesses – Competence, Compellability and Evidence in Chief and Cross- Examination ... 18
3.1 Introduction ... 18
3.2 Competence and compellability ... 18
3.2.1 Competence ... 18
3.2.3 Minor exceptions to compellability ... 19
3.2.4 Family members of the accused ... 19
3.2.5 The accused – right of silence ... 20
3.2.6 The rationale for the right to remain silent ... 20
3.3 Examination in chief, cross-examination and re-examination ... 21
3.3.2 Examination in chief ... 22
Prohibition against leading questions ... 22
3.3.3 Reviving memory ... 23
Section 32 ... 23
3.3.4 Unfavorable witnesses – questioning one’s own witness ... 24
3.3.5 Cross-examination ... 25
3.3.6 Prior inconsistent statements ... 26
3.3.7 The need to inform witnesses of that intention to assert contrary facts ... 26
3.3.8 Re-examination ... 26
3.3.9 Re-opening cases ... 26
WEEK 3: DOCUMENTARY AND OTHER EVIDENCE ... 28
Chapter 4: Documentary Evidence and Other Evidence ... 28
4.1 Introduction ... 28
4.2 Documentary Evidence ... 28
4.2.1 What is a document? ... 28
The contents of which are sought to be adduced ... 28
4.2.2 Proof of the contents of documents ... 28
The original document rule abolished ... 28
Proving the contents of documents under this Act ... 29
Unavailable documents – oral evidence of their contents ... 30
4.2.3 Voluminous and complex documents ... 30
4.2.4 Authentication of documents ... 30
4.3 Other Evidence ... 31
4.3.1 Introduction ... 31
4.3.2 The nature of ‘other evidence’ ... 31
4.3.3 Views – demonstrations, experiments and inspections ... 31
Experiments made out of court not in the presence of a judge or jury ... 32
Experiments in the jury room ... 32
4.3.4 Other evidence in the courtroom ... 32
Physical evidence ... 32
4.3.5 ... 32
4.4 Conclusion ... 32
WEEK 4: RELEVANCE ... 33
Chapter 5: Relevance ... 33
5.1 Introduction ... 33
5.2 Relevance and admissibility ... 33
5.3 Relevance – definition ... 33
5.4 Inferences as to relevance and provisional relevance ... 34
Inferences as to relevance ... 34
Provisional evidence ... 34
5.5 Conclusion ... 34
WEEK 5: HEARSAY ... 37
Chapter 6: The Hearsay Rule ... 40
6.1 Introduction ... 40
6.2 Hearsay and original evidence ... 40
6.3 Hearsay – the exclusionary rule ... 40
6.3.1 Previous representation made by a person... 40
Previous Representation ... 40
Express oral or written representations ... 41
Implied representations ... 41
Representations to be inferred from conduct ... 41
Representations not intended to be communicated ... 41
Representations not communicated ... 41
Previous representation made by a person ... 41
6.3.2 To prove a fact that was intended to be asserted ... 41
Representations with multiple relevance... 41
6.3.3 Implied hearsay and the intention of the maker of the representation ... 41
What is implied hearsay? ... 41
6.3.4 The intention requirement and express representations ... 42
6.3.5 Summary – identifying hearsay evidence ... 42
6.4 Exceptions to the rule against hearsay ... 42
6.4.1 Section 60 – Evidence that is relevant for a non-hearsay purpose ... 43
Section 60 and the discretion to limit the use of evidence (s136) ... 43
Section 60, remote hearsay and admissions ... 43
6.4.2 First-hand hearsay ... 43
Definition of first-hand hearsay ... 44
6.4.3 The first-hand hearsay exceptions – admissibility of first-hand hearsay ... 44
6.4.4 First-hand hearsay in civil cases ... 44
6.4.5 First-hand hearsay in criminal cases ... 44
6.4.6 Criminal proceedings where maker is unavailable – s65 ... 45
Representations for which some guarantee of reliability exists – s65(2) ... 45
Representations made under a duty – s65(2)(a) ... 45
Representations made when or shortly after and unlikely to have been fabricated – s65(2)(b) ... 45
Reliable representations – s65(2)(c) ... 46
Evidence already given in prior proceedings – s65(3)-(6) ... 46
Representations against interest of maker – s65(7) ... 46
Representations adduced by an accused – s65(8), (9) ... 46
6.4.7 First-hand hearsay in criminal cases where maker is available ... 46
Proofs of evidence – s66(3) ... 46
6.4.8 First-hand contemporaneous statements about a person’s health etc – s66A ... 46
6.4.9 Other exceptions to the hearsay rule ... 47
Business Records ... 47
Tags and labels: s70 ... 47
Electronic communications: s71 ... 47
Aboriginal and Torres Strait Islander traditional laws and customs: s72 ... 47
WEEK 6: OPINION EVIDENCE ... 48
Chapter 7: Opinion Evidence ... 50
7.1 Introduction ... 50
7.2 Rationale ... 50
7.3 Distinction between facts and opinions ... 50
7.4 Opinion rule ... 50
7.5 Exception: lay witness opinions – s78 ... 51
7.6 Exception: expert witness opinions – s79... 51
7.6.1 Specialized knowledge ... 52
7.6.2 Training study or experience ... 52
7.6.4 Basis rule ... 52
7.7 Discretionary exclusion ... 52
7.8 Ultimate issue and common knowledge rules ... 53
7.8.1 Ultimate issue ... 53
7.8.2 Common knowledge ... 53
7.9 Evidence of previous judgments and convictions ... 53
WEEK 7: ADMISSIONS ... 54
Chapter 8: Admissions ... 56
8.1 Introduction ... 57
8.2 What are admissions? ... 57
Previous representations ... 57
Non-hearsay admissions ... 57
8.3 Admissions are an exception to the hearsay and opinion rules ... 57
8.4 Exclusion of certain admissions ... 58
8.4.2 Admissions not admissible as against third parties ... 58
8.4.3 Admissions influenced by violence and other conduct ... 58
Burden of proof ... 58
What is ‘oppressive conduct’? ... 58
8.4.4 Admissions by criminal defendants in the presence of investigators ... 59
In what situations will the section apply? ... 59
Nature of the test: subjective or objective? ... 60
What kind of circumstances may adversely affect the truth of an admission? ... 60
8.4.5 Exclusion of records of oral questioning and mandatory electronic recording of admissions ... 60
8.5 Evidence of silence ... 60
Selective answering ... 61
Failure to mention a defence later relied on ... 61
8.6 Discretionary exclusion of admissions ... 61
8.6.1 The ‘Unfairness’ discretion – s90 ... 61
8.6.2 The discretion to exclude improperly obtained evidence and s139 ... 62
WEEK 8: TENDENCY AND COINCIDENCE EVIDENCE ... 63
Chapter 9: Tendency and Coincidence Evidence ... 65
9.1 Introduction ... 65
9.2 Tests for the admissibility of similar fact evidence – history and overview of current test ... 65
9.2.2 Admissible if relevant otherwise than via propensity test ... 65
9.2.3 Probative value must outweigh prejudicial effect ... 65
9.2.4 Another rational view test ... 65
9.2.5 Just to admit it despite prejudicial effect test ... 66
9.2.6 Similar fact evidence under the Act ... 66
Civil cases – similar fact evidence more readily admissible ... 66
Criminal cases ... 67
9.3 Evaluation of dangers associated with similar fact evidence ... 67
Burden of proof/presumption of innocence ... 68
Practical problems ... 68
Bias ... 68
Propensity reasoning and inability to estimate probability ... 68
9.4 The importance of similar fact evidence ... 68
9.4.1 The conceptual basis for the relevance of similar fact evidence: propensity reasoning? ... 68
Beliefs and probability ... 68
General notions of relevance ... 68
Cases where evidence is relevant only via propensity ... 68
Similar fact evidence rarely probative of actus reus ... 69
The jury may engage in propensity reasoning... 69
Incorrect assumptions about probability ... 69
9.5 Conclusion and reform suggestions ... 69
Reform suggestions ... 69
9.6 Similar fact evidence when it is not directly relevant to a fact in issue ... 69
9.6.1 Relationship evidence ... 69
Guilty passion ... 70
9.6.2 Res gestae ... 70
9.7 Conclusion ... 70
WEEK 9: CREDIBILITY AND CHARACTER EVIDENCE ... 71
Chapter 10: Credibility and Character Evidence ... 72
10.1 Introduction ... 72
10.2 Credibility of witnesses ... 72
10.2.1 The general rule – credibility evidence not admissible ... 72
10.2.2 Credibility evidence of witnesses and people in relation to whom representations are admitted – when admissible ... 72
10.2.3 Special situation of prior convictions of accused ... 73
10.2.4 The finality rule and exceptions to the rule ... 74
10.2.5 Further exceptions: re-establishing credibility – re-examination and allegations of recent invention ... 74
10.3 Good character evidence by accused ... 74
10.4 Credibility evidence given by experts on credibility ... 75
10.5 Protection to complainants in sexual offences cases ... 75
WEEK 10: PRIVILEGES ... 76
Chapter 13: Privileges ... 76
13.1 Introduction ... 76
13.1.1 Common law privileges and s131A ... 76
13.1.2 Privilege claims ... 77
13.2 Client legal privilege ... 77
13.2.1 Rationale ... 77
13.2.2 Scope ... 77
13.2.2.1 Defined terms – s117... 78
13.2.2.2 Sections 118 and 119 ... 78
13.2.3 Loss of client legal privilege – s121 ... 79
13.2.4 Loss of client legal privilege – s122 ... 79
13.2.5 Loss of client legal privilege – s123 ... 79
13.2.6 Loss of client legal privilege – s124 ... 80
13.2.7 Loss of client legal privilege – s125 ... 80
13.2.8 Loss of client legal privilege – s126 ... 80
13.3 Privilege against self-incrimination ... 80
13.3.1 Rationale for the privilege ... 81
13.3.2 Scope of the privilege ... 81
13.3.3 Abrogation of the privilege ... 82
13.3.4 The accused as a witness ... 82
13.3.5 Corporations ... 82
13.4 Matters of state ... 82
13.4.1 Rationale ... 83
13.4.2 Scope ... 84
13.4.3 Class and content claims ... 84
13.4.4 Court inspection ... 84
13.5 Settlement negotiations... 84
13.5.1 Rationale ... 84
13.5.2 Scope ... 84
13.5.3 Exceptions ... 84
13.6 Religious confessions ... 85
13.7 Judicial reasons privilege... 85
13.8 Other privileges ... 86
13.8.1 Doctor/client privilege ... 86
13.8.2 Professional confidential relationship privilege ... 86
13.8.3 Sexual assault communications privilege ... 86
WEEK 11: DISCRETIONS TO EXCLUDE EVIDENCE... 87
Chapter 14: Discretions to exclude evidence ... 87
14.1 Introduction ... 87
14.2 Granting leave – s192 ... 87
14.3 The relevant provisions – the discretions ... 88
14.3.1 Section 135 discretion ... 88
14.3.2 Section 136 discretion ... 88
14.3.3 Section 137 discretion ... 88
14.4 Improperly and illegally obtained evidence ... 89
WEEK 1 – INTRODUCTION AND OVERVIEW
Chapter 1: The Nature of Evidence Law and the Uniform Evidence Acts
1.1 The nature of evidence law
Evidence is the branch that defines the type of information that can be received by a court in order to assist the decision maker (judge or juror)
Must distinguish between what is ‘admissible’ and ‘inadmissible’
Must make decisions regarding the source of evidence and its reliability
Evidence law is the formalization of the fact finding inquiry that individuals perform as part of their everyday lives
o Regulated by the Uniform Evidence Act in Victoria
1.2 The objectives of evidence law – truth, discipline, protection
1.2.1 Evidence law is procedural, not substantive
Two types of rules of evidence
o Matters of process concerning how evidence can be given and who can give it o What sort of information can be received by the courts
Overarching rule that only relevant evidence can be adduced
Evidence law is procedural, not substantive, and largely concerned with distinguishing what evidence is admissible and what is not
1.2.2 Truth is an important objective
Truth gives rise to the reliability principle, which aims to ensure that the guilty are convicted and the innocent acquitted.
1.2.3 Disciplinary principle – arguably flawed
Disciplinary principle leads to the exclusion of certain forms of ‘wrongly’ obtained evidence
Admissions and illegally obtained evidence are excluded in a bid to discourage law enforcement officers from adopting inappropriate practices
It is arguable that this principle overlooks the officers who committed the wrong; the discretion to exclude evidence so obtained is rarely exercised
1.2.4 Protective principle
Requires that parties to litigation should be treated fairly and protected from possible prejudices o Includes prohibiting the admission of the prior criminal convictions of the accused, and
prohibition of commenting on an accused’s exercise of the right to silence
Preconceived views and human mind is such that memories cannot be selectively erased however
1.2.5 Other objectives
Loyalty is an important virtue; trust between the lawyer and the client
1.3 Looking forward to reform of evidence law 1.4 The existing law
1.4.1 Background to the Act, applies in…Vic
The Australian Reform Commission in 1987 recommended changes; the fruit of this was the Uniform Evidence Act 1995
o Adopted in Victoria in 2010 (Evidence Act 2008)
Applies to both jury and non-jury trials; similarly both criminal and civil proceedings 1.4.2 The Acts are not always identical in structure and interpretation
Principal objective underpinning the act is to have uniform evidence law in Australia
Victoria also has the Charter of Human Rights and Responsibilities Act 2006
o States that ‘all statutory provisions must be interpreted in a way that is compatible with human rights’: s32(1)
Section 30 also has a similar effect, as illustrated in Moncilovic o Methodology to ascertain if charter right is infringed:
Ascertain meaning of the relevant provision by applying s32(1)
Consider whether provision breaches a human right
If so, apply s7(2) of the Charter to determine if limit imposed is justified
Therefore, the Act should be interpreted through the lens of the human rights charter
1.5 Structure of resolving evidential issues
Logical structure:
o Is the witness competent?
o Is the evidence relevant?
o Is the evidence excluded by the application of an exclusionary rule?
o Is the evidence excluded by the operation of a discretion in s 135, 137 or 138?
Framework:
s.165 - Unreliable Evidence Unreliable Evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence-
(a) Evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies (b) Identification evidence
(c) Evidence of reliability of which may be affected by age, ill health (whether physical or mental), injury and the like
(d) Evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding (e) Evidence given in a criminal proceeding by a witness who is a prison informer
(f) Oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant
(g) In a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence is he or she were alive
(2) If there is a jury and a party so requests, the judge is to- (a) Warn the jury that the evidence may be unreliable; and
(b) Inform the jury of matters that may cause it to be unreliable; and
(c) Warn the jury of the need or caution in determining whether to accept the evidence and the weight to be given to it
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so (4) It is not necessary that a particular form of words be used in giving the warning or information (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3)
R v Stewart
Facts: a witness was granted a discount on their sentence based on their willingness to testify for the prosecution.
Held: The NSW Supreme Court held that the trial judge should have given a section 165 warning in relation to the witness.
- The evidence should have been treated as a kind of evidence that might be unreliable.
- The court also held that in addition to warning the jury that the evidence may be unreliable due to the influence of a sentencing discount that the jury should be made aware that the discount could be lost if the witness failed to give appropriate testimony.
Chapter 2: Overarching concepts: Role of judge and jury, burden and standard of proof and types of evidence
2.1 Introduction
2.2 The nature of court proceedings and the roles of the judge and jury
2.2.1 Rules of evidence operate the same in each court venue
Two types of disputes:
o Criminal proceedings: brought by the state against the individual
o Civil proceedings: brought by an aggrieved party against a party it claims to have committed a legal wrong
The rules of evidence described apply to legal proceedings irrespective of which court the matter is being held
2.2.2 Rules of evidence are stricter in criminal cases
Important to ensure the accuracy of the outcome in criminal matters given that the state must act in the most coercive matter; consequences are much more dire
Reliability is a more important touchstone in criminal matters 2.2.3 Adversarial process
The fact-finder is, in effect, a passive recipient of the evidence presented;
Each party must prepare its own case
Key aspect of prosecutorial duty is to call relevant and credible witnesses, even those whose evidence will tend to exculpate the accused
o Most common reason to not call a witness (by prosecutor) is that he or she was of the view that the witness was not credible or reliable
o When a party elects to not calla witness who would be reasonably expected to give evidence, an adverse inference can be drawn against that party where the failure to call the witness is not satisfactorily explained
2.2.4 Order of proceedings and witnesses
The party bringing the proceeding must prove its case o Thus they must call their witness first
When the witness is called to give evidence, they are sworn or affirmed;
They then give their account (known as ‘examination in chief’)
Then they can be ‘cross-examined’ by the opposing party
After cross-examination, the witness can be re-examined by the party that called the witness in order to clarify matters that arose during the cross-examination
2.2.5 Fact finder is either judge or juror
Judge or juror is the entity that determines whether a party has succeeded in their cause of action – they are the fact finder
o Jury determines the facts; judge determines the questions of law
No jury means judge does both
2.2.6 Voir dire – procedure for determining admissibility of evidence
Whether an item of evidence is admissible is determined by a justice in the absence of the jury o This hearing is known as a ‘Voir dire ‘, and is a 'trial within a trial’
S 189 Governs this area:
o (1) Determination of whether evidence should be admitted; whether it can be used; or whether a witness is competent or compellable
A party seeking voir dire must first satisfy the Judge or Magistrate that there are reasonable grounds for a voir dire, and counsel must identify the issues to which it is directed: R v Lars
Jury must ultimately decide on the weight of the evidence: they can therefore effectively negate the impact of an item of admissible evidence if it considers that either it is not important or should not be accepted
DPP (NSW) v Zhang determined that s189 extends to criminal and civil proceedings, whether heard by a judge or magistrate sitting alone or with a jury
2.3 Burden and standard of proof
2.3.1 Burden (or onus) of proof
General rule is that the party that asserts a matter has the obligation to prove that matter
Criminal cases: presumption of innocence; Civil cases: presumption of no wrongdoing 2.3.2 Standard of proof
Civil Proceedings – legal burden
Standard of proof is on the balance of probabilities – effectively means greater than 50% satisfaction
Reinforced by s 140 of the act
o (1) determined by the balance of probabilities
o (2) Court can take into account the nature of the action; the subject-matter of the proceedings; or the gravity of the matters alleged
Generally, the more serious the consequences of litigation, the more a court will have to regard the strengths and weaknesses of the evidence
o The strength of the evidence necessary to establish a fact or facts on the balance of probabilities at common law may vary according to the nature of that which is sought to be proved: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
‘The difference between the criminal standard of proof and the civil standard is no mere matter of words: it is a matter of critical substance…The mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge’ Rejfek v McElroy
2.3.3 Criminal cases – legal burden
s.141 of the Act
o (1) In criminal proceedings, the court is not to find the case of the prosecution proved unless it is satisfied
o (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities
Green v R:
o Held: The term ‘beyond reasonable doubt’ is not defined by the legislation, but neither should the courts or judges attempt to define it in their directions to juries. Where a judge does so, there are grounds for appeal.
Beyond reasonable doubt – highest standard of proof in our legal system
Where the legal burden rests on the accused, the standard of proof is the lower standard: on the balance of probabilities
Courts have consistently maintained that ‘beyond reasonable doubt’ means beyond reasonable doubt and that it is improper and not feasible to provide guidance
2.3.4 Admissibility of evidence – balance of probabilities
Where an issues relates not to an element of the offence but to admissibility of evidence, then facts relevant to the determination of the issue need to be proven on the balance of probabilities: s 142 2.3.5 Evidential burden
No universal formulation for determining the standard of proof required to satisfy the evidential burden; clear that it is lower than the standard of probabilities
It is for a JUDGE to decide whether the evidential burden has been met; it then passes to a JURY to decide whether the legal burden of proof has been met in order to make a decision.
2.4 Types of evidence
2.4.1 Verbal, documentary and physical evidence
Verbal: Most common; to give verbal evidence, one must normally sear or make an affirmation to tell the truth
Documents: includes letters, contracts, emails and other forms
Physical: tangible items other than documents can be adduced as evidence, can include fingerprints and murder weapons
2.4.2 Facts in issue
Evidence is only admissible if it is relevant to a fact in issue in the proceedings
Can be in either one of two ways:
o Directly bear on the matter – can be if a witness states that they saw the accused shoot the victim
o Indirectly relevant – Can be alleged that the witness is dishonest or unreliable; may be because they are a notorious liar, has poor memory, eye sight, etc.
To prove a case, all the facts in issue must be proven to the satisfaction of the jury. If a jury rejects any of the facts in issue then the prosecution fails.
R v Stephenson:
o In addition to logical relevance, the evidence must also be sufficiently connected to a fact in issue and not too remote.
Hollingham v Head
o One party to an agreement believed there was a clause under which they did not have to pay for the product unless it was of a particular quality; the seller denied the existence of any such clause when the D refused to pay.
o In addition to the evidence being irrelevant according to the trial judge, there was no evidence that the condition had been a term in previous contracts.
s.55
o 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
The use of the word rationally indicates that the act has adopted a new common law concept of logical or rational evidence.
s.56
o Relevant evidence to be admissible:
o 1) except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in a proceeding
o Evidence that is not relevant in a proceeding is inadmissible
Smith v R
