Evidence

(1)

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Judicial Discretions

• If evidence is relevant (s 55), form in which it is to be tendered must be admissible – must not fall into one or more of various exclusionary rules

• If does fall within any such rule, determine whether it falls into one or more of exceptions to that rule

• BUT even if evidence relevant and admissible, may be excluded in its entirety or limited in use

• Even if admitted, may attract specific direction or warning regarding approach to be taken to its evaluation

Exclusion of Evidence

• Secs 135-138 – general discretions to exclude evidence, limit use of evidence and exclude prejudicial evidence in criminal proceedings

• Allow evidence that is relevant or admissible to be excluded or limited

• Overarching safeguard to stop anything unfairly prejudicial to the fact finder

• Part 3.11 Evidence Act

- Applies to civil and criminal proceedings - Characteristics of the general discretion:

▪ Based on assumption evidence in question is otherwise admissible

▪ Power is discretionary – court can still admit evidence

▪ Balancing exercise between probative value and danger

▪ Power to reject evidence only engaged if probative value substantially outweighed by danger of kind in (a)-(c)

- Exercise of the general discretion

▪ Assessment of probative value:

o Dictionary Pt 1: probative value of evidence = extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue o Absent particular circumstances, court should not assess reliability of evidence in

determining probative value but should presume evidence would be accepted – focus on potential of evidence to affect a fact in issue: R v Shamouil

• 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or

(c) cause or result in undue waste of time.

(3)

18 o IMM v The Queen: High Court favoured this position – in assessing probative value,

no regard should be had to credibility or reliability

➔ ‘Rational’ effect of evidence does not require court to consider its veracity or weight which might be attached to it by ultimate finder of fact

➔ Only question for purposes of s 55 is whether evidence has capability, rationally, to affect findings of fact

▪ Is the probative value of the evidence substantially outweighed by the danger of one or more of the statutory considerations in s 135?

o For discretion to be exercised, affirmative conclusion must be reach that probative value is substantially outweighed by danger of one or more of matters (a)-(c) o If probative value well outweighs prejudicial effect, evidence will be excluded: R v

Clark

o Court not required, in order to exercise discretion, to reach affirmative conclusion that evidence does fall into any such category → might fall: Seven Network Ltd v News Ltd (No 8)

▪ Danger that the evidence might be unfairly prejudicial to a party: s 135(a)

o Not directed to evidence which is prejudicial per se – evidence which is unfairly so: R v Cakovski

o Papakosmas v The Queen (1999) 196 CLR 298

➔ Unfairly prejudicial vs prejudicial

➔ Evidence is not unfairly prejudicial to party merely because it strengthens case of other party who seeks to rely on it

➔ Unfair prejudice – evidence that is unfair because real danger (not mere possibility) that evidence will be misused by the jury in some unfair way – real danger that fact finder may use evidence to make the decision on an improper basis (such as irrational, passionate or emotional basis)

➔ Real risk jury may give evidence some weight that is not justified rationally, or jury may be influenced by something about evidence which takes their

attention of real issue – danger jury might be influenced by evidence that has a dual or multiple relevance (evidence admissible for one purpose but not for other BUT jury exposed to it in any event so danger for evidence to come through)

o Unfair prejudice may arise by using it in manner logically unconnected with issue in case: R v Lockyer

o By adopting illegitimate form of reasoning or giving it more weight than it properly deserves: R v Yates, Parry, Hyland, Powick

o Where nature and content of evidence may inflame members of jury or divert them from their task: R v Ngo

o Substantially = must establish particular danger more than just a possibility o Usually stem from nature of evidence

o BUT may also arise as consequence of procedural unfairness e.g. accused in criminal proceeding being confronted with new evidence at late stage of trial: Haoui v The Queen

o Weight of authority supports conclusion that absence of opportunity to cross- examine does not, of itself, mean there is danger of unfair prejudice: R v Suteski – BUT not blanket rule and necessary to determine each case on its own facts

o Section may be engaged to exclude evidence sought to be relied on by an accused: R v Taylor

(4)

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▪ Danger that the evidence might be misleading or confusing: s 135(b)

o Evidence led in form that is incomplete might be regarded as misleading or confusing:

Hughes Aircraft Systems International v Airservices Aust (No 3) → danger evidence presents only part of the picture, distorts true situation

o Evidence which might distract jury

o Where expert asked to give opinions based on hypothetical situation but hypothetical situation might not be based on exactly same facts as ones in issue – any necessary explanations might overly complicated that evidence and mislead jury

o Evidence is ambiguous – could have more than one meaning so forces jury to speculate about which is the meaning that applies

o Evidence misleads jury into incorrectly assessing the weight of the evidence

o Evidence logically unconnected with issues in case might warrant exclusion under (a) or (b)

o Reading v ABC [2003] NSWSC 716

➔ Defamation proceedings

➔ One party wanted to adduce transcript of TV program – some defamatory imputation arising from that program

➔ Fact finder had access to what was seen on television

➔ Another piece of evidence to be adduced – actual transcript of words used

➔ Judge excluded the submission of transcript because already video recording – adding transcript could be misleading as could make jury focus on words themselves as they fell on paper and fail to take into account way in which words uttered and body movements, tone words said etc

➔ Danger jury would look at TV program and find something satirical but look at words and not find the satire – confused about what true evidence is

➔ Jury would be distracted, to prejudice of both parties, and thus administration of justice, by temptation unduly to concentrate on written record when there was video evidence of spoken words, which founded essence of plaintiff’s claim

▪ Danger that the evidence might cause or result in undue waste of time: s 135(c) o Warranted to save judicial resources from being directed to burdensome inquiry,

from which there is unlikely to be any substantial countervailing benefit in assisting the resolution of the relevant issues: Koninklijke Phillips Electronics NV v Remington Products Aust Pty Ltd

o Balancing exercise necessarily includes assessing amount of time which party arguing for exclusion of evidence contends will be unduly wasted: Cadbury-Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd

o Assessment must have regard not only to time would take to adduce evidence but also any time which would be taken up in calling any evidence in reply: R v Taylor o Probative value disproportionate to what is involved because substantially presented

by some other witness to jury, may unduly waste court’s time to hear further evidence on that subject etc

(5)

20 o Relatively low probative value and adducing that evidence may side-track litigation –

undue waste of time (possibly misleading)

- Useful where evidence admissible for one purpose but inadmissible for another purpose - May be admissible for non-hearsay purpose (e.g. opinion purpose)

- Applies to all evidence incl evidence of, or adduced by, accused in criminal proceedings - Where, in trial by jury, use of evidence is limited under s 136, trial judge must give warning ot

jury and explain ways in which use of evidence is permitted and forbidden

- Mandatory not discretionary exclusion if test satisfied – no residual discretion: R v Blick - Lower threshold than substantially outweighed – protection of defendants in criminal

proceedings

- E.g. gruesome photographs of crime victims → horrific injuries etc generally have low

probative value of who is responsible for violence but give vivid description of ordeal suffered – inspire irrational emotions and need to punish – might mean evidence misused and likely defendant unfairly prejudiced

- Def in criminal matter would seek to appeal to specific discretion in s 137 in preference to general discretion in s 135

- Probative value – no regard to credibility or reliability

- Onus on accused to establish that probative value is outweighed by danger of unfair prejudice: R v DG; DG v The Queen

- Requires trial judge to engage in evaluative task – impressionistic assessment of evidence:

McCartney v The Queen

- Prejudice must be unfair, in sense of being inconsistent with interests of justice: Papakosmas - May extend to procedural defaults

- Court should also consider any warnings or directions that may be given – regard to what warnings and directions might be able to be given so as to ensure no such prejudice arises in first place (Burrell v The Queen)

- R v Lisoff [1999] NSWCCA 364

▪ Prosecution wanted to adduce DNA evidence that clothes def was wearing on day of assault had traces of blood from the victim

▪ Def denied and alleged DNA evidence was planted on his clothes by police after they took him into custody

▪ Defence expert suggested must have been deposited on the clothing after taken into police custody

▪ Trial judge exercised discretion to exclude evidence on basis jury was faced with conflicting scientific evidence (prosecution had conflicting expert evidence)

• 136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing

• 137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

(6)

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▪ Cross-examination by prosecutor – def said that, two days after event in question, he had told members of his family what had occurred between himself and complainant

▪ Def’s counsel sought to adduce evidence from his client’s wide and mother of contents of conversation

▪ At trial, evidence was ruled as inadmissible

▪ Appeal – held evidence was admissible as Act draws no distinction between admissibility of out-of-court statements made by complainant, and statements of similar kind made by person accused of crime

- R v Parkes: Evidence from a prosecution witness of what accused said to him at time relevant to commission of offence admissible under s 66 because accused was an available witness to give evidence in his case about the subject conversation

- Turns on question of fact – is maker of PR unavailable - EA Dictionary defines ‘unavailability of persons’:

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(a) the person is dead, or

(b) the person is, for any reason other than the application of section 16

(Competence and compellability: judges and jurors), not competent to give the evidence, or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

(d) it would be unlawful for the person to give the evidence, or (e) a provision of this Act prohibits the evidence being given, or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2) In all other cases the person is taken to be available to give evidence about the fact.

- Ludowici Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 251 (made all reasonable inquiries and followed up)

- Failure to establish the fact that person’s last known address is not their current address likely to preclude finding that ‘all reasonable steps’ have been taken: Land Enviro Corp Pty LTd v HHT Huntley Heritage Pty Ltd

- Representations made by deceased person were held to be ‘previous statements’ within meaning of s 63: Lane v Jurd (No 2)

- Maker of PR having interest in litigation or other reasons to question reliability of PR – consideration may be given to application of discretionary exclusions or limitations ss 135-8 - BUT as permits statements by person not available, if evidence is otherwise admissible, that fact alone could not reasonable justify discretionary exclusion of the evidence: Quintano v BW Rose Pty Ltd

• 63 Exception: civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or

(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.

(7)

101 - Unless complies with s 67 notice requirement, evidence inadmissible

- Does not apply to s 65(9) and s 66A

- What constitutes reasonable notice depends upon all circumstances of the case:

Easwaralingam v DPP

- (4): Factors which inform exercise of that discretion: whether any prejudice would be visited upon a party by dispensing with requirement to give notice; considerations of expense and delay (Tsang Chi Ming v Uvanna Pty Ltd); whether evidence is uncontroversial (Quintano v BW Rose Pty Ltd)

• 67 Notice to be given

(1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence. …

(3) The notice must state:

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and

(b) if section 64 (2) is such a provision – the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

(5) The direction:

(a) is subject to such conditions (if any) as the court thinks fit, and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

• 68 Objections to tender of hearsay evidence in civil proceedings if maker available (1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it:

(a) would cause undue expense or undue delay, or (b) would not be reasonably practicable,

a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence.

(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.

(3) The court may, on the application of a party, determine the objection at or before the hearing.

(4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs incurred by another party:

(a) in relation to the objection, and

(b) in calling the person who made the representation to give evidence.

Evidence - StudentVIP

Evidence

Contents

Judicial Discretions