1
Evidence Law – Summary Notes
PRELIMINARY ... 3
General powers of the court ... 3
Relationship between EA and other law ... 3
Dispensing with rules of evidence ... 3
Voir dire ... 3
Objections ... 3
Appeals ... 4
PROOF I ... 5
Burden of proof ... 5
Standard of proof... 5
Prima facie case ... 6
ADDUCING EVIDENCE ... 7
Calling a witness ... 7
Competence and compellability ... 7
Sworn and unsworn evidence... 10
Examination of witnesses ... 11
Cross-examination... 13
Vulnerable witnesses ... 16
Re-examination ... 16
Reopening case... 16
Documents... 17
Real evidence ... 18
RELEVANCE ... 20
HEARSAY ... 21
The hearsay rule ... 21
Exceptions to the hearsay rule ... 22
ADMISSSIONS AND SELF-INCRIMINATION ... 28
Definition ... 28
The rule ... 29
Exclusionary rules ... 29
CREDIBILITY ... 32
Definition of credibility evidence ... 32
Exceptions ... 32
TENDENCY AND COINCIDENCE EVIDENCE ... 35
Definitions and Application ... 35
Tendency rule ... 35
Coincidence rule... 37
CHARACTER OF THE ACCUSED ... 38
OPINION ... 39
Rule ... 39
Exceptions ... 39
IDENTIFICATION EVIDENCE ... 42
Visual identification evidence ... 42
Identification by pictures... 43
Directions to jury... 43
Exclusion of identification evidence ... 43
DISCRETIONS ... 44
Exclusion of evidence ... 44
Limits to the use of evidence ... 45
Exclusion of improperly or illegally obtained evidence ... 45
PROOF II ... 48
Judicial notice... 48
Inferences from absence of evidence ... 48
Warnings ... 49
5
PROOF I
Burden of proof
- Evidential burden – duty to call sufficient evidence to raise an issue as to the existence of a certain fact material to the case: Braysich v R
- Legal/persuasive burden – satisfying the trier to requisite standard once all evidence has been received i.e. the burden of establishing a case
o Civil: generally burden of proof lies with plaintiff
o Criminal: generally burden of proof lies with prosecution Standard of proof
Civil
- Standard for either party is BOP: s 140(1) - Court is to take into account: s 140(2)
o (a) the nature of the cause of action or defence, and o (b) the nature of the subject-matter of the proceeding, and o (c) the gravity of the matters alleged.
- Evidence must be enough to enable the court to feel actual persuasion that a particular fact is so: Helton v Allen
- Party who bears burden of proof on BOP can discharge burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify an inference that it is more likely than not that the event occurred or that the state of affairs exists: Henderson v QLD
- In more “serious” civil cases
o Seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether issue has been proved: Bringinshaw principle, codified in s 140(2)(c)
o Discouraged idea of ‘onerous’ Bringinshaw standard: Qantas Airways v Gama
▪ Standard does not increase to higher level, but it may be more difficult to satisfy when considering its inherent gravity and unlikelihood
- Process of inferential reasoning informed by certain principles: Henderson v QLD
o All evidence is to be weighed according to proof which it was in the power of one side to have proved and in power of other to have contradicted
o Reflecting conventional perception that people do not ordinarily engage in
fraudulent or criminal conduct, courts should not lightly find that, on BOP, a party to civil litigation has been guilty of such conduct
Criminal
- Standard of proof is BRD: s 141(1)
o Must prove elements of the offence and any fact essential to proof of an element BRD
- Judge discouraged from elaborating on meaning of BRD: Green v R
o Reasonable doubt is a doubt which the particular jury entertain in the
circumstances, they set the standard of what is reasonable in the circumstances o Jury not required to analyse their own mental processes
o May emphasise that BRD is ‘much higher’ than civil standard: R v Dookhea - Circumstantial evidence
o Prosecution bears burden of proving all elements of the crime BRD but that does not mean every fact or every piece of evidence relied upon to prove an element by inference must itself be proved BRD: Shepherd
o In a case resting upon circumstantial evidence, it is not correct that jury may only properly draw an inference of guilt upon facts proved BRD: Shepherd
▪ Strands in a cable – if there is no single link in the chain that requires proving BRD, cumulative circumstantial evidence is sufficient to draw ultimate inference of guilt
o However, if it is necessary for jury to reach a conclusion of fact as an indispensable step in reasoning process towards an inference of guilt, that conclusion must be established BRD: Shepherd
▪ Links in a chain – where intermediate facts constitute indispensable links in a chain of reasoning towards inference of guilt
o Whether there is a need for TJ to identify such a conclusion and direct jury as to need for proof BRD of that conclusion depends on circumstances of case
▪ Where evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give that warning
▪ Only appropriate for indispensable steps in circumstantial cases to direct that it needs be proved BRD
Prima facie case Civil
- At end of P’s case, D may submit that no prima facie case exists
- This claim by D will be upheld if there is a defect in the P's evidence such that, taken at its highest, it will not be capable of proving the cause of action on the BOP
Criminal
- At end of Crown’s case, D may submit that no prima facie case exists
o Not guilty verdict may only be directed if there is defect in evidence such that taken at its highest, it will not sustain guilty verdict: Doney v The Queen
- Prima facie case may be established if the evidence, taken at its highest, D could lawfully be convicted: May v O’Sullivan
o If there is evidence (even if tenuous, inherently vague or weak) which is capable of supporting guilty verdict, matter must be left to a jury: Doney v The Queen - Judge who decides there is a “case to answer” may still, if no evidence is called for D,
refuse to convict on the evidence for the prosecution: May v O’Sullivan
o D could adduce no evidence and P may still fail to satisfy the legal burden o Burden of proving guilt BRD rests on prosecution from first to last
20
RELEVANCE
Note: with respect to questions of admission, standard of proof is BOP: s 142 - Relevance is first question to be asked in relation to admissibility
o If evidence is relevant, it is prima facie admissible: s 56(1) o If evidence is not relevant, it is not admissible: s 56(2)
- Evidence is relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of fact in issue: s 55(1)
o Requires only minimum logical connection, objective test: Papakosmas o It is enough if it makes fact in issue more or less probable
- Facts in issue
o Civil: legal cause of action and defence, i.e. anything in the pleadings o Criminal: the factual elements of the charge and defence
- Evidence not relevant if it provides nothing more than what the jury has already been provided: Smith (police officers’ evidence that they knew the accused and recognised him in photos not relevant, because they had only seen Smith in courtroom, as had jury)
o C.f. Evans: where D’s walk and talk was found relevant - Evidence is not irrelevant because it relates only to: s 55(2)
o (a) the credibility of a witness o (b) admissibility of other evidence o (c) a failure to adduce evidence
▪ Unexplained failure to call a witness may, in appropriate circumstances (esp. where such evidence would reasonably have been expected to be called), support an inference that the uncalled evidence would not have assisted the party's case: Jones v Dunkel; Kul v Zurich Financial Services
▪ Rule cannot apply to an accused in a criminal trial: Dyers v The Queen - Provisional relevance
o If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: s 57(1)
▪ (a) if it is reasonably open to make that finding; or
• A finding as to authentication of evidence need not be obtained, as long as it is reasonably open to make a finding of authenticity
▪ (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.
• E.g. evidence that is adduced that will make sense when a future witness is called. If no evidence is adduced later, it is not relevant and is not admissible
- Inferences as to relevance
o If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity: s 58(1)
▪ i.e. the court may deem the authenticity of a document simply by reference to the document itself, no need for external authentication
HEARSAY
The hearsay rule
- Evidence of previous representation is not admissible to prove existence of fact that it can reasonably be supposed that the person intended to assert by the representation: s 59(1)
o Representation deemed inadmissible unless party wanting it adduced can establish on BOP that it cannot be reasonably supposed that the person intended the fact to be communicated
o If cannot be established, it will be inadmissible as hearsay unless a particular statutory exception applies in Division 2 of Part 3.2.
- (1) Previous representation – representation made otherwise than in course of giving evidence in the proceeding: Dictionary
o Representation includes: Dictionary
▪ Express or implied, whether oral or in writing
▪ Inferred from conduct
▪ Not intended by maker to be communicated to another person
▪ Even if for any reason it was not communicated - (2) Made by a person
o Excludes representations made by machines (eg cameras at traffic lights) or animals (eg dogs barking at time of a murder)
- (3) Reasonably be supposed that the person intended to assert a fact
o Objective test, have regard to circumstances in which representation was made: s 59(2A)
- (4) Admitted to prove the existence of a fact
o Not all previous representations captured by hearsay rule: Subramaniam
▪ Depends on the use that is sought to be made of it o (a) Legally significant words
▪ Evidence of oral discussions and representations adduced to prove the terms of an alleged contract
▪ Defamatory words in libel claim
▪ Incitement
o (b) Evidence of prior consistent or inconsistent statement
▪ Adduced to support or impeach witness credit: Lee v The Queen
o (c) Previous identifications by the witness where that witness is able to identify D in court
▪ Adduced to bear on credibility
o (d) Evidence of D’s particular state of knowledge:
▪ E.g. statement that TV is loud not adduced to prove that TV is loud but that D was in the room of the crime: Kamleh v The Queen
o (e) Evidence adduced to prove D’s state of mind
▪ E.g. threats adduced to prove a person was acting under duress:
Subramaniam
o (f) Evidence adduced as basis of expert opinion/report: Quick v Stockland, Jango Effect of s 60
- Rule does not apply to evidence of previous representation that is admitted because it is relevant for purpose other than proof of asserted facts: 60(1), amended after Lee v The Queen
o Can be admitted this way whether or not the person who made the representation had personal knowledge of the asserted fact: s 60(2)
22
Exceptions to the hearsay rule
**Consider: is this a statement by the defendant? If yes, is it an admission?
First-hand hearsay exceptions
- Contemporaneous statement about person’s health
o Rule does not apply to evidence of a previous representation made by person if representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind: s 66A
- If the maker of the representation had personal knowledge of the asserted fact, based on what they saw, heard or otherwise perceived, that may constitute an exception to the hearsay rule: s62(1)(2)
- Notice
o A party seeking to rely on firsthand hearsay exception must provide notice in writing (s67(1)) and state the divisions relied upon (s67(3)(a))
o However, court may direct that exception applies despite lack of notice: s67(4) - Competence
o Person making the representation must have been competent to give evidence at the time of making the representation: s61(1)
- Availability
o Onus of proof is on the party seeking to adduce the evidence to prove that the maker of the statement is unavailable: Heerey J in Caterpillar v John Deere o Per cl. 4 Dictionary, the maker is unavailable if:
▪ (a) Dead
▪ (b) Not competent (other than by s 16 re judges and jurors)
• Lack of memory does not mean incompetence and therefore unavailability: Brown v The Queen
▪ (c) Mentally or physically unable to give evidence and not reasonably practicable to overcome: Bar Association v Franklin
• Where mental condition is such that will suffer significant mental adverse consequences if he/she testifies: R v Nona
▪ (d) Unlawful for person to give evidence
▪ (e) A provision of the Act prevents evidence
▪ (f) Could not be found, or their attendance could not be secured after all reasonable steps: Caterpillar Inc v John Deere
• Establish personal contact (ascertain if change of address)
• Ascertain health/prior commitments
• Offer to pay all expenses and compensate for business interruption
▪ (g) Could not be compelled to give evidence after all reasonable steps
• Exhaust all reasonable steps, even if they would ultimately be futile: Caterpillar Inc v John Deere - should have made an application under s7 of Foreign Evidence Act
• If a witness is called but refuses (notwithstanding threat of contempt) the paragraph is satisfied
▪ The paragraph is satisfied if s 18 applies to the witness (DPP v Nicholls (2010)) i.e. parent, child, spouse, de-facto.
Civil proceedings
- If maker not available, provided that notice and competence requirements are met, hearsay rule will not apply to: s 63(2)
o (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
o (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation
▪ The document was written or made by the maker of the representation, or signed or marked by them: Caterpillar v John Deere
- If maker available, hearsay rule does not apply if adducing the evidence (witness or document) would cause undue expense or delay, or would not be reasonably practicable to call person who made representation to give evidence: 64(2)
o Undue’ expense: what would be the actual cost of seeking attendance of the witness; compare cost with actual value of the litigation at stake in the case; assess importance of the witness to the issues in the trial: Caterpillar v John Deere
o Consider locations of witness and trial, their age and medical condition, and extent to which their evidence is disputed: Franklin
▪ E.g. would cause unwarranted expense/delay to call 6 witnesses to give evidence when transcript of their earlier witness, including cross from same opposing party was available and proposed evidence was not significantly challenged; also not practicable in light of worsening mental health as a result of trial
- Other party must object to the tender of evidence within 21 days of receiving notice that the maker who is available is not being called: s 68(1)
- If the maker of representation is available and is called, hearsay rule does not apply to evidence of the representation that is given by: s 64(3)
o (a) that person, or
o (b) a person who saw, heard or otherwise perceived the representation being made Criminal proceedings
- Maker not available, defendant adducing hearsay evidence
o If maker not available, provided notice and competence requirements are met, hearsay rule will not apply to: s 65(8)
▪ (a) evidence of previous representation adduced by defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or
▪ (b) document tendered as evidence by defendant so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation
o Where defendant has adduced previous representation about a matter, prosecution may adduce representation that also concerns the same matter and hearsay rule will not apply: s 65(9)
- Maker not available, prosecution adducing hearsay evidence
o If maker not available, provided notice and competence requirements are met, hearsay rule will not apply to evidence of previous representation (by witness) if representation was made: s 65(2)
▪ (a) Under a duty to make that representation e.g. police officer to sergeant
▪ (b) When or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication
• Whether representation was made ‘shortly after’ depends on the circumstances of case: Williams, Harris
o 5 days after not sufficiently proximate: Williams o 24 hours was sufficient: Harris
