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EVIDENCE LAW EXAM NOTES 2022
1. Relevance, Admissibility, Discretion ... 2
Relevance ... 2
Discretions ... 3
Burden (Onus) and Standard of Proof ... 5
Burden (Onus) of Proof ... 5
Standard of Proof ... 5
2-3. Course of the trial ... 7
Witnesses: Preliminary issues ... 7
Examination-in-Chief ... 10
CROSS EXAMINATION ... 15
4. Competence and Compellability ... 20
Privileges ... 27
5. Opinion ... 31
Expert opinion exception ... 32
Lay Opinion exception ... 39
6. Identification and Recognition ... 40
1.Relevance ... 41
2. Exclusionary rules: opinion ... 42
Discretions: should the evidence by excluded? ... 43
Directions – what needs to be said? ... 47
7. Hearsay ... 50
Common Law Exclusionary Rule ... 51
8. Hearsay Exceptions ... 54
COMMON LAW EXCEPTIONS ... 55
Statutory Exceptions ... 59
9. Corroboration | Character ... 63
Corroboration ... 63
Character ... 68
Tutorial ... 72
10. Propensity + Relationship Evidence ... 75
11. Admissions + Confessions ... 79
1. Is there an admission/confession? ... 79
2. Statutory rules ... 84
3. Admissibility and discretions at common law ... 88
12. Real Evidence ... 92
Documents ... 92
Demonstrative & real evidence ... 93
1. Relevance, Admissibility, Discretion
Relevance
(1) Only relevant material can be admitted (2) All relevant material is PF admissible
“The fundamental rule governing admissibility is that it be relevant.” (Wilson)
evidence is relevant if it renders the existence of a disputed fact more or less probable if that evidence had not been heard.
Common Law (WA): Material is legally relevant (aka legally/sufficiently relevant) if:
1. it is logically relevant (aka bare/mere relevance) and
o does it render the existence of a disputed fact more or less probable than if it had that evidence not been heard?
2. not too remote. (hollingham; smith)
• (Hollingham; Stephenson - BAL of 2 of 3 deceased drivers too remote, but relevant)
2 types of facts in Issue:
Facts in dispute: not agreed by both parties 1. Direct: directly goes to disputed element
o A punched B
2. “Circumstantial” or “indirect”: inference can be drawn that goes to disputed element o A had bloody knuckles
2 ways evidence can be relevant
1. Directly goes directly to a fact in issue (direct or indirect) o I saw A punch B (direct FII)
o I saw A’s knuckles (indirect FII) 2. indirectly goes to reliability of other evidence
o I am an optom and W who saw punch has bad eyesight (directly relevant evidence)
o I know optom is bad practitioner (indirectly relevant evidence)
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Discretions
1. The Christie discretion (137 Uniform Evidence Act)
The prejudicial effect outweighs the probative value.
R v Christie [1914] AC 545:
• C convicted of indecent assault on 5yo boy.
• Complainant was walking with his mother and pointed to C: “He’s the one” and related what he alleged. C said: “I’m innocent”.
• HL: There is no rule of law that would exclude this statement. Nevertheless, it should have been excluded in the exercise of judicial discretion: its prejudicial effect outweighed its probative value.
De-Abreu v Western Australia [2020] WASCA 145, [132]-[133].
• A trial judge has a discretion to exclude otherwise relevant and admissible evidence on the ground that its prejudicial effect exceeds its probative value …. [I]n Festa v R [HCA 2001], McHugh J said:
• But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
• Just because evidence is weak, that’s not ground for excluding
• Prejudice doesn't mean supportive of prosecution – means it’ll likely cause things to go off the rails
2. The fairness discretion (s90 UEA)
It would be unfair to the accused to now use evidence obtained in court
.
R v Foster (1993) 113 ALR 1: The Fairness discretion
• F, a young Aboriginal man confessed to criminal damage in the following circumstances:
• Eight non-Indigenous POs ordered him into a caged truck, in front of friends and family.
• Arrest unlawful and detained for 7 hours.
• Questioned alone at the pol station, so vulnerable to ‘verballing’ (false words put into the mouth of); no chance for corroboration of his version.
• Po threatened to arrest his younger brother
• Afraid and lonely.
• Issue of admissibility
• HCA: should be excluded because it was unfair. Forensic disadvantage, kept for long time with no support, threatened
3. The Bunning v Cross discretion (138 UEA)
Material is obtained illegally or improperly by a public authority.
Bunning v Cross (BvC) (1978) 141 CLR 54: The Public Policy discretion
• C (PO) saw B drive fast and erratically; pulled him over.
• C saw B stagger and smelt alcohol.
• B accompanied C to pol station and took breathalyser test. B.a.l: 0.19.
• Charged under RTA. – under this act 0.19 bal is conclusive of guilt However:
• C did not comply with procedures under RTA for requiring breathalysers – so evidence obtained illegally.
• Magistrate dismissed the charge as there was not enough evidence without it.
HCA:
• evidence obtained unlawfully in this manner is itself not inadmissible as a matter of law as it is discretionary. Its not an exclusionary law.
• This is not about fairness like Foster, its about balancing public interest:
Balance two public interests: (See B v C [27], p75)
1. Interest in bringing wrongdoers to conviction [favours admission].
2. Interest in avoiding curial approval or encouragement being given to unlawful conduct on the part of those whose task it is to enforce the law. [favours exclusion]
Factors to weigh:
1. Whether breach of procedure was deliberate, reckless or negligent
• here it was just mistake - favouring admission
2. Probative value of the evidence (not to be considered where breach was deliberate or reckless).
• here was a mistake + evidence of highest probable value – constituted guilt 3. Ease with which the law could have been complied with.
• was easy - Favours exclusion 4. Nature of the offence.
• could be trivial in magis, didn't involve harm. HOWEVER HCA considered the social policy to be serious favouring admission
5. Legislation creating the requirement: was it general or narrowly prescriptive?
• If very specific – has parliamentary intention that you MUST do this. General would favour admission. Here, held it was specific and serious intention favouring exclusion.
HCA concluded: discretion should have been exercised to admit the evidence.
Discretionary decision on appeal
• There is a presumption in favour of the TJ’s exercise of discretion. (In the Marriage of Richards; Aust Coal & Shale Employees v Cth)
The decision must be affirmed unless it is:
• ‘clearly wrong’. That is:
• Wrong principle has been applied;
• The TJ has given weight to irrelevant matters or ignored relevant matters;
• The decision is based on a mistaken view of the facts; or
• “so unreasonable or plainly unjust”, in which case an error can be inferred.
• (Australian Coal and Shale Employees v Cth) Criminal Appeals Act 2004 (WA), s30
• (3) CA must allow an appeal where:
– (a) verdict is “unreasonable or cannot be supported”;
– (b) there is a wrong decision on a question of law; or – (c) a miscarriage of justice.
• (4) Despite sub-s(3) CA may dismiss the appeal where there is no “substantial miscarriage of justice”.
(See OKS v Western Australia [2019] [34]-[39].)
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Burden (Onus) and Standard of Proof
(Burden/onus): who must bring evidence; which party?
(Standard): Once in court, how convincing must that evidence be?
Burden (Onus) of Proof
1. Evidential burden: obligation to ensure sufficient evidence is before the court.
2. Legal burden: ultimate obligation to prove a thing to the fact-finder.
CRIMINAL
(Wilmington)Where onus shifts to defendant: Statutory Provisions
Parliament has the constitutional power to place a burden of proof on a defendant. Where the burden lies will always be a matter of statutory interpretation. Examples of this are:
• Defence provided for under the Crim Code to one aspect of stalking offence “if it is proved by ... the accused that [s/he] ... did not intend to ... follow” the compl.
• Defence provided for under the RTA to dangerous driving causing death. Offence provides: if b.a.l. is 0.15, accused is deemed unable to control car. Then “it is a defence for the person charged to prove” death was not attributable to b.a.l.
• For how to approach statutory interpretation of where the burden of proof lies see: the foundational case of Chugg and the recent case of The Corporation of the City of Unley v Crichton & Anor, [60]-[73].
Standard of Proof
CRIMINAL TRIALS: beyond reasonable doubt
There is no disagreement about this, however, issues have arisen in the context of TJs’
directions to the jury about this standard.
1. The HC has insisted that TJs do not elaborate on the meaning of ‘brd’ b/c this is “apt to confuse” the jury. (Green)
2. But it is not necessarily wrong to give some guidance. (Dookheea) ‘Any doubt’ is different from a ‘reasonable doubt’.
Offences General ‘defences’
(authorisations, justifications, excuses)
Specific defences (Insanity and legislative )
Legal burden prosecution prosecution defence
Evidential burden prosecution defence defence
Juries may be able to investigate the meaning of BRD. In Chatzidimitriou the jury requested a dictionary. The two majority judges in the Vic CA held this was not wrong – b/c jury was seeking factual assistance not being given a legal instruction.
What is the standard of proof for an Accused who bears legal burden in relation to a defence in a criminal trial (e.g. Insanity)? More probable than not.
• Note same standards of proof in criminal trials apply under the UEA: s141.
Discharging the evidential burden
Whether evidential burden has been met is a matter of law for the judge. [whether a legal burden has been met is a matter of fact for a fact-finder]
judge should:
• Take view of ev most favourable to party who bears the evidential burden
• Ask: if that ev is believed by fact-finder, could the legal burden of proof be met? (For criminal cases – not whether the A “ought to be convicted” but whether s/he “could lawfully be convicted” – see Khoo, at [18].)
Therefore:
1. Pros has evidential burden re: offences. Pros presents ev, judge decides – if this ev is believed, could all elements of offence have been proved BRD?
2. Acc has evidential burden re: insanity. Acc presents ev, judge decides – if this ev is believed, could elements of insanity have been proved on the BP?
3. Acc has evidential burden re: self defence. Acc presents ev, judge decides – if this ev is believed, could there be a reasonable doubt ?
• An A who bears an evidential burden with respect to a general defence (e.g. Prov, SD) need not adduce evidence but may point to evidence already before the court.
• And, even if A does not raise a defence, there is a duty on the TJ to do so if there is ev of it before the court. (Van den Hoek)
If a party thinks their opponent has not met their evidential burden they can make a submission to the court that there is “no case to answer”. See, e.g. Hutchinson [8], [19].
Hutchinson [2003]
• H charged with permitting a child to act as a prostitute under Prostitution Act 2000 (WA), s16. Crown brought evidence that:
o Complainant was a child;
o H ‘permitted her’ to o act as a prostitute.
• H made a “no case to answer” submission (Crown has not produced sufficient evidence to prove its case).
o HOW – implied requirement that he knew she was a child. The Crown has not produced sufficient evidence to prove BRD the element of knowledge.
o TJ agreed with H’s argument.
• Prosecution appealed the acquittal – one grounds of acquittal following successful no case submission.
o CA overturned the TJ’s decision (no 4th element needing to be proven) and ordered a re-trail.
o CA held: s49 of the Prostitution Act places the onus of proof on defendant (to prove s/he did not have knowledge).
o So, Crown had met its evidentiary burden (3 elements). A re-trail ordered to see if there was proof on the BOP that H did not know the Compl-’s age.
o [8], [19].
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2-3. Course of the trial
Witnesses: Preliminary issues
1. Who decides which witnesses to call?
accused for accused, Prosecution for Prosecution. SUBJECT TO CAVEATS:
• R v Apostilides
• Accused convicted of rape
• P’s case: A and friend met complainant and friend at the pub, went back to C’s house.
Advances made by A to the C were rejected throughout the evening – C asked everyone to leave. A stayed behind and raped her.
1. Opening addresses a. Pros
b. Def
2. Evidence (witnesses) a. Pros
i. (“No case” submission by def) b. Def (if she chooses)
c. [Re-open]
3. Summing up a. Pros b. Def
Trial judge’s charge to the jury – explaining the law that the jury must apply about which facts they believe to have proven
If your own D won’t say what you want them to:
• Small leading prompting q
• Refresh memory from prior doc
• Ask for recess
• If they’re deliberately not speaking: Declare hostile witness
o Why – so you can x examine them (leading questions – attack creditability, and put PIS to them.)
o When? When reluctant to tell the truth
o How to prove – McLellan: demeanour, PIS (material) o How: s 20 WA – voir dire (absence of jury)
o If W rejects – can only use a credibility
o If W accepts PIS – statement can be used as evidence for truth
• If w really nervous: special witness accommodations o Allowing pre-recorded vid
o Give evidence remotely o Have a screen up o Have support person
Finality Rule: Answers given to Q’s concerning matters only going to credit – FINAL 1. Is it a collateral matter? – only goes to the person’s credibility
2. Do exceptions apply?
a. Bias: Nicholls Coats, Umanski 3. Discretion
