Evidence Schedule
(1) Introduction to Evidence Law
Evidence law is procedural/adjectival law which concerns enforcement (in contrast to substantive law which looks at prohibitions)
o Governs how a trial operates by guiding how evidence is admitted and presented to fact-finder as well as how the evidence is used to make persuasive a particular set of facts
Sources of evidence law:
o Evidence Act 1995 (Cth); (NSW)
Each jurisdiction has its own Act but we look at the ‘uniform’ evidence law
‘Uniform’ in the sense that it covers NSW, Cth, Tas, Vic, and the 2 territories (so not WA, Qld, SA)
Even the jurisdictions which have the uniform evidence act have subtle differences
Not uniform in the sense that it does not form a code e.g. S8 of the Evidence Act states that it does not affect the provision of other Acts
Similarly s9 of the Evidence Act states that the common law is preserved except where the Act makes it clear that the common law is not to be preserved e.g. s94(4) of the EA
Since evidence law is procedural law, the evidence law of the tribunal applies
o In a federal nation like Australia, Federal law can be used in both Federal & State Courts e.g. federal drug offence can be tried in NSW Supreme Court, then the law of each tribunal/state Act would apply o The same federal offence in NSW would use EA (NSW), in Federal Court it would use EA (Cth) and in
Qld SC would use EA 1977 (Qld)
Changes in Evidence Law operate retrospectively o E.g. EA s97A
o If a person is charged with an offence which occurred in 2018 and the trial commenced in 2021, the 2021 law will have application, and in this sense would apply retrospectively
Distinguish with if a change was made to the substantive law offended, then that wouldn’t apply to the trial, the 2018 law would apply
o The defendant doesn’t have a right to be tried in a particular way – Maxwell v Murphy (1957) 96 CLR 261
How does Evidence Law Control Fact-Finding?
This can be adduced from the Evidence Act:
o Ch 2: Adducing Evidence
o Ch 3: Admissibility of Evidence (relevance, exclusionary rules, exceptions o Ch 4: Proof (standard, who bears burden)
Judge and Jury
It is the Judge’s role to ensure the rules are followed and evidence is adduced in accordance with Ch 2, 3 and
4 The jury is the tribunal of fact – to weigh up evidence and follow the directions of the trial judge
The key role is played by s189 of the Evidence Act
o If there is an issue in the trial about the proper application of the evidence law, it may be necessary for the trial judge to resolve that issue in the absence of the jury (voir dire, trial within a trial) o E.g. s84 and s138 of the Evidence Act
S84: Exclusion of admission influenced by violence and certain other conduct
factual dispute has to be resolved first in the absence of the jury e.g. was an admission influenced by a threat of violence before presenting to jury
if evidence is not admissible, jury cannot hear it
S138: Discretion to exclude improperly or illegally obtained evidence Why does Evidence Law control fact-finding?
EA does not have objectives section, but general agreement is that EA is to ensure:
o Factual accuracy – to prevent wrongful conviction o Efficiency – there may be endless pieces of evidence
o Fairness considerations – to the parties, defendant, witnesses, complainant o Institutional values and functions – e.g. existence of jury to involve community
Example: s135 (general discretion to exclude evidence in consideration of fairness etc.) , s192 (leave permission or direction; gives discretion to judge to take into account fairness etc.), s190 (waiver of rules of evidence)
S8 EA: This Act does not affect the operation of the provisions of any other Act.
S9 EA: This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
S189 EA: The voir dire
S190 EA: Waivers of the rule of evidence
(3) Proof (i) – Burdens, Standards
This stage is the final stage of the trial where the evidence is before the fact-finder
Juries are only really used in criminal and defamation cases Civil Cases
Standard of proof for either party is ‘balance of probabilities’: s140(1)
Burden allocation is a matter of substantive law and statutory interpretation
o Symmetrical – fighting over same thing, same balance, generally same resources
o A generalisation which can be made is that usually it is the party asserting has to prove – the plaintiff o But more accurate to say that it is a matter of substantive law e.g. negligence law, tort law which
specifies who bears burden
o Also who has better access to evidence More serious Civil Cases
Where there are more serious allegations and not typical contract, tort cases
As per EA s140(2): “Without limiting the matters that the court may take into account … it is to take into account:
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
Common law: the Briginshaw principle (1938)
o This was a divorce case which involved one spouse accusing another spouse of committing adultery o Dixon J said that this is a serious allegation and thus account should be taken of the seriousness of
the allegation in determining whether this has been proven due to:
The inherent unlikelihood of an occurrence – as more serious allegation is less likely in contrast to people who are typically negligent; assault is more common than homicide
Gravity of the consequences flowing – injustice would be greater where a more serious allegation is made; and thus graver concern about making an error with graver consequences o There is suggestion that s140(2) does not follow Briginshaw: Qantas Airways Ltd v Gama (2008) 167
FCR 537
Case where Gama, an employee of Qantas brought an action against Qantas under the Racial Discrimination Act and that Qantas has discriminated against him on the basis of race
The Magistrate found in favour of Gama and Qantas appealed on various grounds, one being the Magistrate had not taken into proper account the seriousness of the allegations under s140(2)
Full Federal Court dismissed the appeal and discouraged reference to the “onerous Briginshaw standard”
Said that Racial Discrimination Act is a remedial Act and if the Court says racial discrimination is too serious, it will limit the effectiveness of the Act
Also says it is not serious as the Act does not say that discrimination is intentional and can be inadvertent so should not be viewed as a serious matter
Applying s140(2), Court says no mistake was made by the Magistrate
The actual approach is one where – the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and the circumstances in which it is sought to be proved
This is why in addition to taking into account s140(2), other relevant matters could include the inherent unlikelihood or otherwise of the occurrence of the matter of fact alleged
Criminal Cases: Standard of Proof
As per s141 of the EA:
o (1) In a criminal proceeding, the Court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt
From the case of Green (1971) 126 CLR 28, the High Court described beyond reasonable doubt as a ‘time-honoured formula’
Asymmetrical standard as prosecution is more burdened – imbalance in resources and stakes
For the standard, the HCA has discouraged any further elaboration of what the means (Green (1971) 126 CLR 28):
o “A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances”
o It is that ability which is attributed to them which is one of the virtues of the trial: to their task of deciding facts they bring to bear their experience and judgement”
o They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case”
(5) Witnesses Calling a Witness
Not specifically addressed in Statute but see:
o S11: General Powers of a Court
o S26: Court’s control over questioning of witnesses
(CIVIL) From Clark Equipment Credit of Australia Ltd v Como Factors (1988) 14 NSWLR:
o Discussion of the question of whether a judge can call a witness in a civil trial
o Powell J approved authority which held that in civil cases, a judge may not call a witness without the consent of both parties
Note: Later interpretation of this case as per Wilcox J in the Federal Court in Obacelo have held that according to this authority, there is power for the court to call a witness in a civil case
(CRIMINAL) From R v Kneebone (1999) 47 NSWLR 450:
o FACTS: Kneebone appealing conviction of aggravated sexual assault on his de facto spouse’s daughter, then 14 y.o. Ground of appeal was that the Prosecutor failed to call Kneebone’s de facto (complainant’s mother) as a witness. According to the complainant’s case, during the sexual assault, mother walked in and said ‘that’s enough’ but P did not call on her or cross-examine when she was called by D as she was perceived to be in D’s camp.
o Citing Apostilides:
1. The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the rea- sons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may then make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular per- son as a witness would appear to have had on the course of the trial. No doubt that comment, if any, would be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
“it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability”
It is not an adequate basis to conclude that the witness is unreliable merely because the witness’s account does not accord with some case theory which is attractive to the prosecutor o In this case, the failure to call the mother appeared to be, by a failure to adopt an appropriate course
to enable proper consideration of any question of unreliability, resulted in a miscarriage of justice
P should have interviewed mother and called the mother
(CRIMINAL) From Nguyen v The Queen [2020] HCA:
o FACTS: Appellant was interviewed by police before being charged. Recorded interview contained BOTH admissions and exculpatory statements (by claiming self-defence) i.e. a mixed statement.
Issue of whether the Prosecution was obliged to tender the recorded interview as they did not as a tactic to prevent cross-examination based on that recording, more advantageous to their case.
o Court said “whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor’s function”
o Prosecution’s decision to not adduce was tactical and favoured the Crown and does not accord with the prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the appellant
o Appeal allowed Competence and Compellability
Evidence Act s12-20
Criminal Procedure Act 1986 (NSW) s279
Test of competence is concerned with assessing the “ability of the witness to function as a witness”
From SH v The Queen (2012 NSWLR) :
o FACTS: Accused convicted for sexual assault against a girl under 10. Main witness for Prosecution was the complainant who gave unsworn evidence. Appeal on the basis that the judge failed to give necessary instructions to the complainant so her evidence was inadmissible and she was not competent.
o Discussion of s13:
There is no discretionary power to refuse to allow a child to give unsworn evidence, if the court is satisfied as to the capacity to understand a question and give a comprehensible answer in accordance with s13(1)
Trial judge complied with s13(5) despite doing so by asking questions of the witness; as this form of instruction should not be seen as inconsistent with the requirements of s13(5) BUT what was missing from the final question was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness ‘should feel no pressure to agree’ with such a statement
o Conclusion was that the complainant was not competent to give unsworn evidence because she did not have sufficient capacity to understand the obligation to tell the truth and not given the directions required by s13(5) in full – trial not conducted according to law and conviction set aside
From R v GW (2016) 258 CLR 108:
o FACTS: GW was convicted of an act of indecency in the presence of his daughter R who was under the age of 10 years old. Trial judge determined that R’s evidence should be given unsworn and failed to direct jury concerning the significance of the fact that R’s evidence was unsworn.
o No issue as to R’s capacity but rather about competence to give sworn evidence
Obligation as in s13(3) – even if a child may agree that he/she understands that they are telling the truth, they may not understand what it is to give evidence in a court proceeding
The “obligation” in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound to give truthful evidence
Where a witness is a young child there is no requirement to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of unsworn evidence: The Queen v GW (2016) 258 CLR 108 at [56].
The fact that the child in that case did not take an oath or make an affirmation (and was not exposed to the consequences of failing to adhere to either) was held to be not material to the assessment of whether the evidence is truthful and reliable: The Queen v GW at [54].
Nor is there a requirement under the common law to warn the jury of the need for caution in accepting evidence and in assessing the weight to be given to it because it is unsworn: The Queen v GW at [56].
The Evidence Act does not treat unsworn evidence as a kind of evidence that may be unreliable. If a direction is requested under s 165(2), there is no requirement to warn the jury that the evidence may be unreliable because it is unsworn: The Queen v GW at [56].
Different considerations may apply in the case of a witness other than a young child: The Queen v GW at [57]. Depending on the circumstances, the court may need to give some further directions: The Queen v GW at [57].
From R v Khan (Unreported, NSW Supreme Court 1995):
o FACTS: Khan was tried for murder of his friend who was renting a room is his house. While Khan was away in Fiji, friend and Khan’s wife had an affair to which Khan found out. A fight ensued and the friend died. Prosecution wanted to call Khan’s wife to testify to which she objected. Can the Judge compel her under s18?
Considerations of the Court: As the accused is Mrs Khan’s husband of 10 years and father of her children, with the marriage enduring this incident alongside Ms Khan’s evidence being of relatively little weight, with the significant matters being proven in the Crown case by other evidence
Balancing exercise as per s18(6): Court said that Ms Khan being required to give evidence would be likely to cause harm to her relationship with the accused of a nature and extent which outweighs the desirability of having the evidence given
Ms Khan not compelled
Sworn and Unsworn evidence in ss21-25 Examination of Witnesses
Big difference between examination in chief and cross-examination: the party that calls witness conducts examination in chief, cannot lead the witness (leading questions - one which suggests the answer)
o In cross-examination however, counsel of opposing side can lead questions – can suggest and put things to the witness
Examination in chief, cross-examination and leading questions
Reasoning behind the above is:
‘Testimony given in answer to non-leading questions is the witness’s own testimony, resting on the witness’s own perceptions, and moulded by the witness’s own values. It is not ... created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness’s character as much as possible.’
o Adversarial assumption: party that calls the witness, the witness is on their side, will want to help the party
(7) The Hearsay Rule
Hearsay refers to ‘A statement other than one made by a person giving oral evidence in the proceedings in inadmissible as evidence of any fact stated’ (Cross on evidence)
o If statement has another purpose to it, it would not be hearsay
o Always ask why was the evidence being adduced i.e. what is the purpose of the evidence?
If it has a hearsay purpose – it is being introduced as evidence of a fact stated within it – then it would be hearsay and excluded unless an exception applies (next lec)
If introduced to prove the truth of the fact that it asserts – hearsay
If not introduced to prove the truth of a fact that it asserts but rather the mere fact that it was made, and we can infer something else of relevance of it e.g. state of mind which is relevant to proceeding, and we are not interested in the truth behind that state of mind (no application) – then it would not be hearsay
The above is the definition under common law
Now we also have a statutory definition in s59(1) of the Evidence Act:
o Need to ensure that each component part of the definition is isolated and satisfied to say it is hearsay, so inadmissible and excluded
o Hearsay is an exclusionary rule
o Hearsay is an example of the adversarial system – like opinion and credibility evidence, we exclude them
S59 The Hearsay Rule
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
There is a controversy over what is meant by ‘as evidence of any fact stated’
o Under common law, there were distinctions between those facts which were:
1. Expressly asserted e.g. this painting is $50,000 (price is expressly asserted)
The hearsay would clearly cover these express assertions
2. Facts impliedly asserted – not stated expressly but could infer a fact from that statement
more difficult; if we were to exclude all inferences, it would exclude a lot of statements and prevent tribunal of fact from relevant evidence
scope: what type of inferences would be caught by this rule?
those intended to be communicated and others which were merely rational conclusions which we draw from context and person making statement
may be that we exclude those which were intended to be communicated but not those with rational conclusions which were drawn from statement, context itself
o Hearsay rule resolved often by asking why the evidence is relevant i.e. what is the purpose for adducing this evidence, is it to prove the actual existence of the facts stated or for some other purpose?
If prove actual existence of fact stated: hearsay and inadmissible unless a specific exception applies
If some other purpose: not hearsay and prima facie admissible Problems with Hearsay Evidence / Rationale for Exclusion
Unreliability – someone has said something out of Court about what someone else has said, if we rely upon this testimony, how do you know its reliable as you did not see or hear that particular thing – to what extent can you swear that its true, as you were not a witness to it
Exclusionary rules of evidence relate to either:
A. Public Policy
o In criminal cases, wrong to deny accused opportunity of cross-examining the maker of the statement, even if cross-examination unlikely to test anything – part of Defendant’s right to participate fully in the trial against him
o Defendant also has a right to ‘confront’ his accused and should be judged on basis of evidence presented before an impartial court rather than on unsubstantiated rumour/gossip
o Procedural objections – admission of hearsay would lead to numerous adjournments to investigate reliability; admission of hearsay can unfairly catch the other party by surprise
o Admission of hearsay might tempt police to rely on secondary (and therefore less reliable) evidence o Desperate accused persons might fabricate exculpatory statements that would be difficult to discredit B. Probative Value
o To what extent would a hearsay statement actually go to prove a fact?
o Defects in hearsay evidence:
Declarant may have wrongly perceived the events in question
Declarant’s memory may be faulty or inaccurate
Declarant may have lied or deliberately distorted the event
Declarant’s statement may have been misunderstood by the witness now reporting it
Defects common to testimony in court, but addressed in cross-examination – hearsay prevents cross-examination, so jurors (crim cases) would over-estimate the probative significance of the evidence
From the case of Teper v The Queen [1952] AC 480:
o Per Lord Normand: “The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost”
o Not just the forensic examination itself, but also how physically the witness responds in light of questioning and how the tribunal of fact is deprived of it
Approaches to Hearsay Evidence
1. Admit all hearsay evidence, where relevant, because tribunal of fact ought to have access to such
information to properly determine guilt or liability. However, where jury, should provide a warning as to the weight to be attached to such evidence.
o Why have an artificial rule that would deprive them of access to a fact which could assist them o As these would all be relevant facts but excluded (as passes relevance hurdle)
2. Exclude all hearsay evidence unless such evidence is very reliable or essential to the case. General rule of inadmissibility, but with specific exceptions.
Civil legal systems adopt (1); Common law systems have adopted (2)
o Common law adopt (2) – full exclusion unless very reliable; general rule of inadmissibility subject to exceptions (which permit statement or fact to be admitted) because it is very reliable
Uniform evidence legislation retains (2) but with the features of (1) o Why the need for reform?
Criticisms of Hearsay under Common Law
The reason why the Evidence Act incorporated number of reforms of hearsay rule was because of criticisms of applications of the hearsay rule under common law, as it resulted in:
o Excluded statements that went beyond its rationale – excluded relevant evidence of innocence – purely because it came within the parameters of hearsay
This is illustrated in R v Sparks [1964]:
– FACTS: Mother was giving evidence as to what her child had said, child being under the age of 4 in relation to a case of indecent assault against the child. The D in the
proceeding was white whereas the girl had told the mother that the perpetrator was a
‘coloured boy’. The evidence was excluded from this case as it satisfied the definition of hearsay – out of court statement introduced as evidence of a fact stated to prove identity of perpetrator.
– Court said this was hearsay and excluded and so even though this seemed to indicate a miscarriage of justice, evidence still excluded
Also see case of Blastland:
– FACTS: Statement which pertained to innocence. Murder case where a statement which pertained to a third party’s knowledge of the location of a corpse and that his knowledge was made known before any of the general public knew about murder – evidence of guilty knowledge. Introduced to prove that he knew where the body was – and from there, can infer that he had guilty knowledge
– HoL said this was hearsay and had to be excluded – even though it was a 3rd party who seemed to know where this corpse was located – it was exculpatory
– Does not matter whether the rule applied to Prosecution or Defence – it applied rigidly o Excluded relevant evidence of superior claim
Illustrated in the case of Myers v DPP [1964]:
– FACTS: There was evidence of numbers in relation to a car which had been recorded in a logbook. These numbers were the same as the numbers on a chassis – which had been introduced to prove that the car was stolen. Trying to match numbers on logbook and chassis – could infer from this that this was a stolen car.
– Court said the logbook was inadmissible as evidence that the claimed car was stolen and was the same as the car in the D’s possession as the numbers in the logbook had been inserted by a person who was not called to testify.
– This finding was criticised even by the Court which made it – as even if the person who inserted the numbers in the logbook – even had that person been called to testify, they would have never recalled the numbers – the logbook itself was more reliable than the oral evidence
– The English HoL were saying that the rules against hearsay was being applied rigidly, and if a statement came within the parameters, unless there was an established
exception that applied to it – it will be excluded even though it may be very reliable or be of great benefit of a D’s innocence due to a technical rule
These miscarriages of justices led to courts trying to advert the rigid application of the hearsay rule by looking for exceptions – became a mess
