70109
EVIDENCE
EXAM NOTES
Table of Contents
Truth, proof & evidence ... 5
Truth ... 5
Proof ... 5
Burden of proof ... 6
Legal burden of proof ... 6
Evidential burden of proof ... 6
Standards of proof ... 7
Criminal ... 7
Civil ... 7
Judicial notice ... 8
Evidence ... 8
Admissibility of evidence under EA ... 10
1: RELEVANCE ... 12
Relevance (Part 3.1) ... 12
The concept of relevance ... 12
Relevance: s55 ... 12
Relevant = admissible: s56 ... 13
Papakosmas v The Queen (1999) ... 14
Smith v The Queen (2001)... 15
Evans v The Queen [2007] ... 16
1A: ANCILLARY ISSUES ... 17
Privileges (Part 3.10) ... 17
Client legal privilege ... 17
“Dominant purpose” test ... 19
Waiving CLP ... 20
Professional confidential relationship privilege (PCRP) ... 21
Potential harm or public interest? ... 22
Loss of CPRP ... 23
Sexual assault communications privilege ... 23
Privilege against self-incrimination ... 24
Religious confessions ... 26
Public interest immunities ... 26
Documentary evidence... 27
General comments ... 27
Definition of a “document” ... 27
Proof of contents of documents ... 28
Real evidence ... 30
Exhibits ... 30
Views ... 30
Witnesses – Competence & compellability ... 32
Competence: who can give evidence? ... 32
Compellability: who must give evidence?... 32
Defendants in criminal proceedings ... 33
Spouses ... 33
Evidence ... 35
Sworn & affirmed ... 35
Unsworn ... 36
Witnesses – Examination ... 37
Calling witnesses ... 37
Failure to call evidence in criminal matters ... 39
Failure to call evidence in civil proceedings... 39
Witness examination ... 40
How is evidence adduced? ... 40
Control of examination by the Court ... 40
Adducing and testing testimonial evidence ... 41
Leading questions ... 42
Browne v Dunn rule... 43
Reviving memory... 44
In court ... 44
Out of court ... 44
Unfavourable witnesses: s38 ... 44
Improper questions: s41 ... 45
Prior inconsistent statements of witnesses: s43 ... 45
Trial procedure (criminal) ... 45
3: EXCLUSIONARY RULES ... 47
Credibility (Part 3.7) ... 48
Defining credibility ... 48
Credibility rule... 49
Credibility evidence ... 50
Exceptions to the Credibility Rule ... 52
Cross-examination as to credibility (s103) ... 52
Further protections: cross-examination as to credibility (s104) ... 53
Rebutting denials by other evidence (s106) ... 53
Re-establishing credibility (s108) ... 54
S293 Criminal Procedure Act 1986 ... 55
Evidence about character of defendant (s110) ... 55
Character (Part 3.8) ... 56
Evidence about character of defendant (s110) ... 57
Leave required to cross-examine defendant (s112 & s192) ... 58
Advance rulings on grant of leave ... 59
Hearsay (Part 3.2) ... 61
The hearsay rule ... 62
Section 59 ... 63
Exceptions to the hearsay rule ... 65
First-hand hearsay ... 66
Civil proceedings, if maker of representation is not available (s63) ... 66
Civil proceedings, if maker of representation is available (s64) ... 67
Criminal proceedings, if maker of representation is not available (s65) ... 68
Criminal proceedings, if maker of representation is available (s66) ... 71
Use of evidence that has a non-hearsay purpose (s60) ... 73
Contemporaneous statements about a person’s health etc (s66A) ... 76
Business records (s69) ... 76
Contents of tags, labels and writing (s70) ... 76
Electronic communications (s71) ... 76
ATSI traditional laws and customs (s72) ... 76
Admissions (s81) ... 76
Opinion (Part 3.3) ... 77
What is opinion evidence?... 77
The opinion rule ... 77
Exceptions ... 78
Lay witness/evidence: s78 ... 78
Identification evidence ... 79
Expert witness/evidence: s79 ... 80
Key elements of s79(1) ... 81
Problems with expert evidence ... 85
Important cases ... 86
Discretionary exclusion of opinion evidence... 87
Admissions (Part 3.4) ... 89
Defining admissions ... 89
An exception to the hearsay & opinion rules ... 89
Types of admissions ... 90
Inculpatory ... 90
Exculpatory ... 90
Admission by conduct ... 91
Exclusionary rules relating to admissions ... 92
Evidence of admissions that are not first-hand: s82 ... 92
Use of admissions against 3rd parties: s83 ... 92
Admissions influenced by violence and other conduct: s84... 93
Unreliable admissions of accused persons: s85 ... 93
Records of oral questioning of accused persons: s86... 94
Evidence of silence: s89 and s89A ... 95
Discretion to exclude admissions: s90... 95
Tendency and coincidence (Part 3.6) ... 97
General principles ... 97
Exclusionary rules under EA ... 99
Tendency rule (s97) ... 99
Two-step requirement under s97 ... 99
Relationship evidence ...101
Coincidence rule (s98) ... 102
Steps for assessing s98 admissibility ...103
Restrictions in criminal proceedings (s101) ... 104
4: DISCRETIONARY & MANDATORY RULES ... 107
S135 – Discretionary rule ... 108
S136 – Discretionary rule ... 110
S137 – Mandatory rule ... 111
S138 – Discretionary rule ... 113
Judicial warnings & directions ... 115
Under the EA ... 115
Section 165 ...115
Children’s evidence (s165A) ...116
Delay in prosecution (s165B) ...116
At common law ... 116
Character (Part 3.8)
Overview
• Character evidence relates to a defendant’s personal qualities, reputation or social standing
• Only relates to criminal matters and to the character of the defendant: s109
• General principle: defendant should not be judged on their character, but the EA will allow defendant to lead evidence of good character if they choose to and if they believe it will help support their case
• Important to note that leading good character comes with risks
• Seen as legally relevant: Gaudron J in TKWJ v R:
o “Evidence of good character is not merely evidence as to credit. It is, in terms used in s 55 of the Evidence Act, evidence that "could rationally affect (directly or indirectly) the assessment of the
probability'' that the Defendant committed the offence or offences charged (33).”
o It is relevant to the judge to decide whether or not this person is guilty of the offence they've been charged
• Rationale behind character evidence:
o Character evidence could be relevant to show either:
§ That it is unlikely for a person of good character would commit the offence; or
§ That where D has given evidence - as a result of them giving evidence in circumstances where they shouldn't have to, then that should be assessed as being a credible witness: Eastman v The Queen (1997)
o It helps address the imbalance that may be suffered by an Defendant in relation any possible attacks on his / her credibility; it is seen as a way to minimise the risk of a wrongful conviction. E.g. the danger of Trier of Fact wrongly estimating probative value of character evidence.
However, Trier of Fact may also think that the good character of the Defendant should be used to balance against the offence committed.
• Problems with rationale:
o Studies show that a person's good character is not a reliable way of predicting whether a person has committed a crime. Instead,
tendency evidence ought to be preferred over character evidence.
o Unfortunately, EA has not followed this approach.
How to lead character evidence:
1) If defendant believes it would support their case, they may lead evidence as to their good character: s110
2) Once defendant leads evidence, the prosecution may cross-examine them regarding this evidence after they are given leave by the Court (s112 & s192)
Evidence about character of defendant (s110)
Section 110 – Evidence about character of accused persons (defendant) (1) Where the Defendant adduces evidence which proves (directly or indirectly) that he / she is a person of good character, the Hearsay Rule, Opinion Rule, Tendency Rule and Credibility Rule do not apply. (i.e. – the evidence will not be excluded by operation of these rules).
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
S110(1):
• "Good character" evidence comes in degrees
• Can be general or relate to a specific aspect of D's reputation. For example:
o “I am a peaceful person who hates all forms of violence.”: I'm never violent
o “I have never physically attacked someone, without provocation.”: I'm not violent…unless I'm provoked"
o “I have never assaulted my wife with anything but my hands – she has never had to go to the hospital.”: I'm violent, but only with my hands not e.g. a stick or bottles"
• Essentially, s110 allows D to call evidence that would be otherwise considered to be inadmissible.
o E.g. Defendant may call a witness to give evidence about the reputation (opinion) without evidence being excluded under s76 or having to conform to the requirements under s78 or s79.
Ss110(2) & (3):
• Provide that where the Defendant has lead evidence of good character (general or specific), the Prosecution and / or a Co-Defendant may call
evidence that the Defendant is not of good character (generally or specifically as the case may be.)
• E.g. if the Defendant calls opinion evidence as to good character, the Prosecution and / or Co-Defendant can also call opinion evidence to
‘negative’ the good character.
• This means that the Prosecution and/or Co-Defendant cannot ask questions or attack D's character until D puts their own good character before the court
o D essentially opening the gates to P or Co-D's cross-examination as to character if they want to give evidence as to their character
• Judge may comment that although someone may be of previous good
character, there is always a first time for committing an offence – evidence of previous good character should not prevail against evidence of guilt.
• Note: use/exclusion of character evidence is subject to discretionary rules in Pt 3.11 EA
R v Zurita [2002]:
• Case demonstrates how s110 is supposed to operate
• TJ had said that character evidence is an all or nothing matter and that character could not be divided into components. As a result of that ruling the Defendant opted not to raise any good character evidence.
• The Defendant appealed the TJ’s ruling.
• The NSWCCA upheld the appeal saying that by preventing the Defendant from splitting character, it prevented them from putting before the jury evidence that the Defendant had no prior convictions for sex crimes against children. If they were permitted to do so, the Crown would have been limited to attacking him only on the issue of sex crimes against children and not his character generally.
Melbourne v The Queen (1999)
• HC decision
• Melbourne, convicted of the murder of his neighbour in NT.
• Melbourne did not deny stabbing the deceased, but sought manslaughter due to diminished responsibility instead of murder.
• Claimed to have health, mental health and drug issues
• Melbourne adduced evidence of good character: including descriptions by witnesses that he was “quiet”, “gentle”, “amiable”, “well-behaved”, etc. Also produced evidence that not “adversely known to police” and had no priors apart from one PCA offence in 1975
• TJ directed the jury that the good character evidence was relevant in
assessing the improbability of Melbourne committing the offence. However, TJdid not make a direction as to the effect of the character evidence on an assessment of his credibility.
• Issue on appeal: whether this was sufficient or whether direction should have included influence on credit. Also whether any failure resulted in a miscarriage of justice
• Held: There is no rule of law that the TJ must give a direction as to the manner the jury could use good character evidence (albeit it would be wise to if requested).
Leave required to cross-examine defendant (s112 & s192)
• After the defendant leads evidence as to their good character, the Court must give the prosecution leave in order to cross-examine them regarding this evidence.
• S112 allows Defendant to be cross-examined about character evidence lead under s110. However, leave of the Court must first be sought (leave is sought in accordance with s192)
