Evidence Notes
LAW4323
Semester 1 2019
Topic 2 – Relevance Page 2
Topic 3 – Competence and Compellability Page 6
Topic 4 – Privilege Page 14
Topic 5 – The Examination of Witnesses Page 25
Topic 6 – Character and Credibility Page 32
Topic 7 – The Accused’s Right to Silence Page 42 Topic 8 – Tendency and Coincidence Evidence Page 44
Topic 9 – Hearsay Page 50
Topic 10 – Admissions Page 60
Topic 11 – Admissions Page 68
Topic 12 – Opinion Evidence Page 72
TOPIC 9 – HEARSAY (PART 3.2)
General Rule: Evidence of a previous representation made by a person is NOT ADMISSIBLE to prove the existence of a fact that it can be reasonably be supposed that the person intended to assert by the representation – s 59(1)
Steps:
- Identify the previous representation
o Note: it must be made by a person (because this has an element of unreliability which is the whole point of this)
- What’s the intended asserted fact in the representation; and
o Make sure it really was intended because this is where the unreliability comes from – Walton
o Court may have regard to the circumstances in which the representation was made when determining whether it can reasonably be supposed that the person intended to assert a particular fact – s 59(2A) - Is the previous representation is being tendered to prove the asserted fact in the previous
representation
o if yes, s 59 applies - Do any exceptions apply?
Definition of previous representation (Dictionary)
Previous representation is rep made at any time other than the current proceeding Representation:
a) An express or implied representation (whether oral or in writing) or b) A representation to be inferred from conduct’ or
c) A representation not intended by its maker to be communicated to or seen by another person; or d) A representation that for any reason is not communicated.
For the purposes of this act, a representation contained in a document is taken to have been made by a person if:
a) The document was written, made or otherwise produced by the person; or
b) The representation was recognized by the person as his or her representation by signing, initialing or otherwise marking the document.
The hearsay rule applies only to out of court statements tended for the purpose of directly proving that the facts are as asserted in the statement – Walton per Mason
o Example: Walton – by saying ‘hello daddy’ on the phone, the child did not intend to make an assertion to the witness that his dad was on the other end of the phone s 59 did not apply.
Thinking: Why do the assertions have to be INTENDED?
- Because it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended.
Is it FHH (first hand hearsay) or SHH (second hand hearsay)?
- S 62(1) FHH is where the maker has personal knowledge of an asserted fact
o S 62(2) Personal knowledge if assertion was/might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived (other than someone else’s previous representation)
Thinking: second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility.
Was the maker COMPETENT? S 61
Presumption that maker is competent – s 61(3)
Can’t use any previous representations to prove the existence of an asserted fact (i.e. exceptions to hearsay) if the maker was not competent to give evidence about that fact – s 61(1)
o This doesn’t apply to s 66A Notes:
Competency may be in issue if the representor/declarant was affected by alcohol or drugs, for example
The other side would use evidence of the lack of competency to attack the credibility of the witness’s testimony
Warning the jury about reliability may be required where evidence is admitted under a cloud re their competency Exceptions to the hearsay rule:
Admissible for non-hearsay purpose? S 60 Division 3 other exceptions to the hearsay rule Does not have to be first hand
Business records – s 69
Contents of tags, labels and writing – s 70
Electronic communications – s 71
Aboriginal and Torres Strait islander traditional laws and customs – s 72
Reputation as to relationships and age – s 73
Reputation of public or general rights – s 74
Interlocutory proceedings – s 75 Division 2 First Hand Hearsay
First-hand hearsay – s 63, 64, 65 and 66
Contemporaneous statements about a person’s health – s 66A
EVIDENCE RELEVANT FO R A NON-HEARSAY PURPOSE - S 60
The hearsay rule does NOT apply to evidence of a previous representation that is admitted for a purpose other than proof of an asserted fact – s 60(1)
- I.e. evidence that is admissible for a non-hearsay purpose is also relevant for a hearsay purpose.
Also applies to SHH – s 60(2) (added post Lee)
However, does not apply if: criminal proceeding + evidence of an admission – s 60(3) (added post Lee) Examples of other purposes:
- Evidence adduced for non-hearsay purpose that it was said (and hence the defendant was scared), NOT to prove the truth of what was said (i.e. that they would actually kill him) – Subramaniam
- Adducing evidence that co-accused said ‘I turned the TV up’ was adduced to prove that Zappia knew something, not to prove that the TV was turned up loudly - Kamleh
Lee v R (1998)
Lee on trial for murder. After the event, Lee runs into Calin and says some things. Calin makes a statement to police.
Calin later refuses to testify about what he said, so the police are tendering evidence of the statement.
- The statement involves two kinds of representations:
o Representations of what Calin said to the police o Representations of what Lee said to Calin
What did Calin intend to assert? That he’d seen the things recorded in the statement, and had said/heard the words recorded. But he did not intend to assert that Lee ‘fired two shots’ or that he had just ‘done a job’. Calin had no way of knowing these facts.
- Because of s 59, the evidence was not admissible to prove the existence either of the facts Calin intended to assert to police, or the facts Lee intended to assert to Calin.
o S 60 operated on Calin’s representations to police – which were being admitted to show PIS.
o But the hearsay rule still applies to what Lee said to Calin.
Held: Evidence of the reported admission was inadmissible.
- S 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. Here, evidence by a police officer that Mr Calin had said, out of court, that the appellant had said that he had done a job was treated as evidence that the appellant in fact had done a job – a fact which Mr Calin never intended to assert.
o (It would be different if Mr Calin had said in evidence in court that the appellant had said he had done a job. Then the representation made out of court would be the appellant’s, not Mr Calin’s).
If hearsay rule DOES NOT apply, then subject to the discretion in s 136, the evidence may then be used to prove the existence of a fact asserted by the representation.
TOPIC 11 – ILLEGALLY OBTAINED EVIDENCE
General Rule: Evidence that was obtained – s 138(1) 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 evidence that has been obtained in the way in which the evidence was obtained
Onuses
The party seeking to exclude the evidence must establish that it was improperly or illegally obtained.
The onus to satisfy that it is more desirable to admit the evidence is on the party seeking admission
QUESTION 1: W AS THE EVIDENCE OBTAINED IM PROPERLY?
Some examples of impropriety:
Breach of applicable internal police guidelines and instructions – R v Em
Entrapment – Ridgeway v The Queen
Misstatement of a fact in an affidavit in support of a warrant – R v Cornwell
Uses of power of arrest for a minor offence when there is no reason to believe that a summons will not be effective – DPP v Carr
An omission to provide adequate medical treatment to a person held in custody – DPP v Carr
An inducement offered to a witness that he/she would not have to give evidence – Ho v DPP
Failure to obtain independent verification of (subsequently disputed) evidence – R v Jiminez
An identification procedure adopted without due regard to principles of fairness to the defendant
Deliberately choosing not to take a definite suspect into custody in order to utilize picture identification rather than an identification parade.
Identification of impropriety requires attention to the following – Robinson v Woolworths:
- Necessary to identify the ‘minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’
- The conduct in question must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards
- The concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence.
Admissions
Deemed impropriety for Admissions – s 138(2)
Evidence of admissions (during/in consequence of questioning) deemed to have been obtained improperly if the person conducting the questioning:
a) Did, or omitted to do, an act during questioning even though they knew, or ought reasonably to have known, that the act/omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
b) Made a false statement during questioning even though they knew, or ought reasonably to have known, that
the statement was false and
that making the false statement was likely to cause the person to make an admission
Didn’t tell them about the right to remain silent:
As [the investigating official] did not caution [the accused] about the right to remain silent before questioning them, [evidence of statements made/acts done by the accused during questioning] is taken to have been obtained improperly – s 139(1) and (2)
Note:
the caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately – s 139(3)
Exception: this does not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official – s 139(4)
Even if they don’t caution you, the desirability of admitting the evidence may still outweigh the undesirability of admitting it - Charles Hinton (A Pseudonym) v R [2015]
o In Charles Hinton, desirability of admitting it was stronger given the probative value of the evidence and the seriousness of the charge.
A reference to a person under arrest (sub(1)) includes a person who is in the company of an investigating official for the purpose of being questioned, if – s 139(5)
a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
b) the official would not allow the person to leave if the person wished to do so; or
c) The official has given the person reasonable grounds for believing that the person would not be allowed to leave if they wished to.
Entrapment
Distinguish between: Gaudron J in Ridgeway v R
- the mere provision of an opportunity to commit a crime, and o The accused is wholly responsible for his own actions.
- inducement to commit a crime
o Where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances, the accused and society may well view prosecution as a serious injustice.
Example:
- Evidence excluded because of entrapment – Ridgeway v R - Evidence allowed despite entrapment – Robinson v Woolworths Ridgeway v R (1995)
- Appellant convicted for importing drugs to Aus from Malaysia. AFP had illegal involvement in the importation to entrap the appellant.
Issue: Should the AFP’s illegal involvement in the importation have resulted in exclusion of the evidence?
Held Majority: the evidence of the importation of the drugs should have been excluded.
Factors for this finding included:
- Illegality of the police’s conduct was both grave and calculated - The conduct created an actual element of the offence charged
- The was selective prosecution (as no police officers were charged with the offence) - There was an absence of any real indication of official disapproval
- Entrapment is not a substantive defence to a criminal charge in Australian law.
