This is a sample summary guide for LAWS2019 and contains snippets of a few topics. The full guide contains all cases and every topic in complete form.
ADDUCING EVIDENCE – WITNESSES
1. Who can call a witness? à In the adversarial system, the parties are left to decide which witnesses will be called. However, the judge or prosecution may be required to call a witness where the failure to do so will result in a miscarriage of justice.
a. Civil
i. Plaintiff
• The plaintiff has to prove the case they are asserting. May call any witness that will assist to satisfy the burden. Subject to exceptions below.
ii. Defendant
• Has no duty to call a witness. May call as part of their defence – or may call none.
iii. Judge
• A judge may not call a witness in a civil case without the consent of both parties.
Clark Equipment v Como b. Criminal
i. Prosecution
• Prosecution has a duty to call all available witnesses necessary to unfold the truth to ensure the accused’s trial is fair (Even if it damages their case) Whitehorn (1983) and failure to call an essential witness may give rise to miscarriage of justice and successful appeal e.g. Kneebone (1999)
a. Kneebone à P did not call eyewitness because they thought witness was unreliable and bias – but only based this off police records which is deemed an inadequate basis. Witness left to defence to call – miscarriage of justice.
• Exceptions….
………
c. If you intend to lead evidence that is contrary to what a witness has said, you must put it to them and challenge in cross-examination. Browne v Dunn
i. BUT à no breach if the witness has been given prior notice of the contradictory evidence e.g. service of pleadings, contrary witness statements (Given to witness).
ii. Consequences of Breach Khamis [2011] NSWCCA
• BUT à no universal rule as to consequences of breach, Different breaches call for different remedies and lie within judge’s discretion and can only be overturned if in error. Payless v O’Gara
• 1. Cross-examiner cannot reference contradiction in address Khamis
a. Cross-examining counsel is taken to accept [the point] and may not be permitted to address in a fashion which asks the court not to accept it.
b. Defence entitled to refer to inconsistencies between prosecution’s
witnesses, even if not raised in defendant’s cross-examination. Only has to raise inconsistencies they are leading: it is not up to the defence to assist the plaintiff in presenting a coherent case. MJW v The Queen
i. This would give the prosecution a chance to fix up their case – why would defence help this.
ii. The rule only obliges counsel to give witnesses the chance to respond to evidence or submissions that form part of the counsel’s own case.
• 2. Witness evidence accepted as true (unless incredible) Khamis
a. Witness is not cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness’s evidence, particularly if it is contradicted by other evidence’.
i. E.g. Precision Plastics: Defendant tried to cast doubt on jury’s acceptance of plaintiff’s working capacity in appeal, but this was not contradicted anywhere in the trial. SC majority held jury was bound to accept evidence of working capacity, because it was not contradicted.
1. BUT: Where a witness’s evidence appeared to be incredible or………..
11. Can the witness be deemed unfavourable? (replaces ‘hostile’ witness in common law)
A party cannot cross-examine (E.g. ask leading questions) their own witness, unless the court declares the witness as unfavourable.
• If wanting to question the witness about matters covered under 1), only need to get leave under this section. If wishing to question about credibility generally (broader), then need leave under 3) as well.
S 38 Unfavourable witnesses
• 1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
o a) Evidence given by the witness that is unfavourable to the party, or
§ What is unfavourable? DPP v Garrett [2016] VSCA
• Appeal gave a broad definition to unfavourable which simply means not favourable to the case which the party is seeking to advance………
ADMISSIBILITY OF EVIDENCE
Once evidence has been adduced, must satisfy test of admissibility.
1. Can the evidence be admitted?
a. Is the Evidence relevant?
55 Relevant evidence
• 1) The evidence that is relevant is evidence that, if it were accepted, could rationally affect (Directly or idirectly) the assessment of the probability of the existence of a fact in issue
o If it were accepted means the court assess the probability on the assumption that the evidence is reliable. Papakosmas v The Queen HCA
§ Here D argued that evidence of complainant saying the event occurred was not relevant to prove the truth of facts asserted. But in assessing relevance the judge assumes that the evidence is reliable. This would then come under hearsay rule.
o This test only involves a logical connection between evidence and fact in issue. Papakosmas v The Queen
o Relevant evidence does not need to make a fact ‘probable’ only needs to affect the probability (i.e. more or less probable than it would be without the evidence) Adam v The Queen HCA
§ Approved Papakosmas v The Queen HCA
o Indirect connections are sufficient e.g. relating to credibility. Adam v The Queen HCA o The relevance of evidence does not depend on its capacity itself to prove the prosecution
case or raise reasonable doubt in favour of the defence. Evans v The Queen o
• 2) Evidence is not to be taken as irrelevant only because it relates to:
§ A) credibility or a witness, or
§ B) the admissibility of other evidence, or
§ C) a failure to adduce evidence
i. In a criminal trial relevant evidence will be evidence which goes to proving the elements of the offence.
1. In Smith v The Queen HCA determined that evidence police could give as to the identity of accused in CCTV was not relevant because the evidence was not materially different than what was available to the jury from their own observation, therefore not rationally affect jury’s assessment.
a. Note: Kirby’s dissent acknowledges the low bar of the Evidence Act would infer it was relevant.
2. Is wearing a balaclava, sunglasses and speech relevant? Evans v R a. All judgements held a different conclusion.
i. Heydon & Crennan à all relevant.
ii. Gummow & Hayne à balaclava, walk & talk = relevant, overalls = irrelevant
iii. Kirby à all are relevant.
1. S 55 test requires no more than if it were accepted, could it rationally affect assessment. Therefore test must be broad.
ii. In a civil case à court will only receive evidence that is relevant to the issues as defined by the pleadings. Goldsmith v Sandilands
1. McHugh J: Evidence is admissible only if it tends to prove a fact in issue, or a fact relevant to a fact in issue – whether a fact is a fact in issue depends on the pleadings
56 Relevant Evidence
• 1) Except as otherwise provided, Evidence that is relevant, is admissible
• 2) Evidence that is not relevant, is inadmissible.
58 Inferences as to relevance
• 1) If a question arises as to the relevance of evidence, the court may examine it and draw reasonable inferences as to its authenticity or identity.
• 2) 1) does not limit which inferences 57 Provisional relevance
• 1) If determining whether evidence is relevant depends on the court making another finding (E.g. if it is what it claims to be), the court may find it is relevant:
o A) if it is reasonably open to make that finding, or
o B) subject to further evidence being admitted later that will make it reasonably open to make that finding
b. However: is the evidence subject to an exceptional exclusionary rule?
i. Can the judge exercise discretion to exclude?
CIVIL AND CRIMINAL (DEFENCE EVIDENCE IN CRIMINAL) 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:
o (a) be unfairly prejudicial to a party, or o (b) be misleading or confusing, or
o (c) cause or result in undue waste of time.
CRIMINAL PROCEEDING
S 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.
1. Probative value? à Extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue
a. Does not involve an assessment of credibility or reliability (That is for the jury). IMM v The Queen (2016)…………..
Is the evidence excluded under hearsay?
1. Is the statement a previous representation (made out of court)?
Identify the statement that was made
2. Does it go to prove the existence of a fact?
Identify the intended asserted fact
b. If it is not intended to prove the existence of the fact à it is not excluded under s 59
c. If Yes à go to 3.
3. Does the relevance depend only on proving the existence of the fact?
What is the relevance of the evidence being adduced in to proceeding – how is the evidence being relied upon and who is seeking to adduce it?
d. Only for proving existence (e.g. the fact that the statement is true, not just that it was said) à excluded under s 59
e. Not only (has multiple uses) à go to 4 i. Examples of non-hearsay purpose:
1. Prove that a previous representation was made Subramaniam
2. Credibility purpose Adam (2001) CLR
3. Basis of expert report Lawson [2000] NSWCCA
4. The evidence is admissible under s60(1) And it may now also be used for any purpose e.g. to prove the fact asserted in it. BUT a court will often instruct the factfinder to limit the use of this under s 136 e.g. to only the use for which it was admitted (e.g. unable to be cross-examined, expert opinion based on assumptions deemed as unfairly prejudicial or misleading and confusing).
……….
Is the evidence excluded as Credibility?
If the evidence can be admitted for another purpose then it is not credibility evidence
Is the evidence relevant only to a witness’ credibility? State why the evidence is relevant a. No à not excluded under credibility (perhaps limited under s 135 – 137)
• But must consider 101A(b) – if it is admissible for its other purpose, it is not credibility evidence.
• If it is not admissible for that other purpose (e.g. hearsay), it is still credibility evidence and may be included on an exception.
b. Yes à does an exception apply?
i. Adduced in cross-examination s 103, 104 s 103 Exception: Cross-examination as to credibility
• (1) Credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
• (2) Without limiting, Court may have regard to:
o A) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and
o B) The period that has elapsed since the acts or events to which the evidence relates were done or occurred.
104 Further protections in a criminal proceeding
• Note this only applies to credibility evidence so won’t apply if credibility but also admissible for another purpose.
• (2) A D must not be cross-examined about a matter that is relevant to the assessment of the D’s credibility, unless the Court gives leave.
• 3) Although, leave is not required to question about whether the defendant is:
o A) biased or has a motive to be untruthful, or
o B) is or was unable to be aware of or recall matters to which his evidence relates, or o C) has made a prior inconsistent statement.
• 4) Leave must not be given unless evidence adduced by the D has been admitted that: a) tends to prove that a witness has a tendency to be untruthful, and b) is relevant solely or mainly to the witness’s credibility.
• 5) Reference to 4) to evidence does not include a reference to evidence of conduct in relation to a) the evidence in relation to what the D is being prosecuted for, or b) the investigation.
• 6) Leave is not to be given for cross-examination by another defendant unless:
o A) the evidence that the D to be cross-examined has given includes evidence adverse to the D seeking leave to cross-examine, and
o B) that evidence has been admitted.
1. Is the witness being cross examined?
a. Yes à see 2
b. No à exception does not apply
2. Would the evidence substantially affect the assessment of the witness’s credibility?
a. Use (2) considerations: whether the witness tends to prove the witness knowingly or recklessly made a false representation when they were obliged to tell the truth, and the period of time since the events s 103(2)(a)(b)
b. Example: State Rail Authority of NSW v Brown (2006)………..
vi. Is the evidence excluded to the hearsay rule as an Admission?
Under s 189(2), while this is being decided the jury must be excluded under the voir dire
Under s 189(3) à hearing of a preliminary question as to admission of a defendant’s admission in a criminal proceeding à the issue of the admission’s truthfulness is to be disregarded (unless raised by D).
n.b. an admission does not have to be a complete admission e.g. ‘I killed them’ it can be
acknowledgement of relevant fact e.g. evidence admitting to being at the location (circumstantial evidence of guilt) or of conduct (running away from location)
1. Is the evidence an Admission?
EA Dictionary Admission à previous representation that is
• a) made by a person who is or becomes party to a proceeding (including a defendant in criminal proceeding) and
• b) adverse to the person’s interest in the outcome of the proceeding.
EA Dictionary Representation
à
includes:• Express or implied (oral or in writing) or
• Representation to be inferred from conduct, or
• Representation not intended by its maker to be communicated not see by another person, or
• Representation that is for any reason not communicated a. Examples:
i. Evidence of D leaving the scene (flight) Adam (1999) HCA 1. Leading the evidence as how a guilty person would behave. ii. ‘Guilty lie’/false alibis Edwards (1993) HCA
1. D gave a false alibi to police – lead evidence as a person who is innocent would not be giving false alibis.
2. Can only be lead as implying guilt once proved false.
iii. Revealing knowledge they would only have if guilty Kamleh (2005) 1. Evidence that revealed the D’s knowledge about facts which can be inferred as
they were at the scene.
iv. Silence when being accused – questionable Christie [1914] AC 1. Lead as that an innocent person would have responded to defendant the
accusation so the silence may be inferred as an admission. However, unlikely because of the right to silence.
v. Exculpatory evidence (as to innocence) when they is other evidence that clearly shows this evidence is untrue R v Horton
1. An alibi which on its face is exculpatory may be an implied admission if used to show a consciousness of guilt in the circumstances where there is other evidence that clearly shows they were not where they say.
2. General rule à Under s 81 The hearsay rule and opinion rule do not apply to evidence of an admission (admission is admissible)
a. (and to evidence of a previous representation made in relation to an admission and to which it is reasonably necessary to refer to understand the admission).
i. E.g. evidence regarding the circumstances they made the admission e.g.
sanity to determine how reliable it is………..
3. ……..HOWEVER à there are exceptions to the general rule a. The evidence must be first-hand s 82
i. Was the evidence given by a person who saw, heard or otherwise perceived the admission being made? S 82
1. Yes à hearsay exception applies, evidence prima facie admissible 2. No à exception doesn’t apply, evidence not admissible
82 Exclusion of evidence of admissions that is not first-hand
• Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:
• A) it is given by a person who saw, heard or otherwise perceived the admission being made, or
• B) it is a document in which the admission is made.
• Note: Section 60 does not apply in a criminal proceeding to evidence of an admission.
o E.g. if you had evidence admitted for a non-hearsay purpose e.g. in Lee v The Queen a document which contained evidence of L saying to C I did it (but adduced for prior NB: If the admission is
equivocal (open to many interpretations) then seek to have the evidence excluded for lack of probative value under s 135, 137
inconsistent statement) under s 60(2) you could use this to assert the truth even though it is second hand.
o However, because it is an admission of guilt in criminal proceeding – it is excluded under (3) b. Is it being used against a third party? S 83……….
1. Is the evidence excluded as evidence of an opinion?
1. Is the evidence that of an opinion?
i. Opinion à an inference drawn or to be drawn from observed and communicable data.
Lithgow City Council v Jackson HCA
1. What is an opinion (As opposed to fact)?
a. The distinction is questionable and usually falls on a continuum. Evidence of an opinion will likely be more in dispute.
b. Evidence of the body falling for 1.5m was found not to be an opinion i. Would be an opinion of the inference (1.5m) was based on
observed and communicable data (position of body in relation to wall).
ii. However, there is no evidence of what the ambos based this inference on.
iii. It is not possible to find on the balance of probabilities what the representation was stating à therefore did not state an opinion.
ii. Yes à go to b
iii. No à evidence is not excluded under opinion rule.
2. Is the evidence being admitted to prove the existence of the fact of which the opinion was expressed? S 76(1)
i. No à evidence is not excluded as opinion, may be excluded as hearsay.
ii. Yes à go to c
3. The evidence is not admissible. S 76(1) S 76 The opinion rule
• (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
• (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
4. However à the evidence may be admissible if one of the following exceptions apply:
i. Relevant otherwise than as opinion evidence s 77
1. Is the opinion evidence relevant for a purpose other than just to prove the existence of the fact?
a. No à exclusion doesn’t apply, evidence inadmissible as opinion evidence.
b. Yes à exception applies, evidence of opinion is admissible s 77
i. Can now also be used to prove the fact of the opinion (like s 60).
ii. For example: R v Whyte [2006] NSWCCA
1. Mother gave evidence that the complainant said ‘a main tried to rape me’
2. Odgers SC expressed that the evidence of a prior consistent statement is also relevant to enhance the credibility of the complainant and be admitted on that basis under s 77. Therefore, opinion rule doesn’t apply, and the evidence can be used to prove the opinion.
S 77 Exception: evidence relevant otherwise than as opinion evidence
• The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.
ii. Evidence of lay opinion s 78
1. Is the opinion based on what a person saw, heard or otherwise perceived about a matter or event? S 78(a)
a. Yes à go to 2
b. No à exclusion doesn’t apply, evidence inadmissible as opinion evidence i. Lithgow City Council à (if it was an opinion) was it based on what
the ambos saw, heard or otherwise perceived? No.
1. S 78 only applies to opinion given by those who actually witnessed the vent about which the opinion is given. The ambos did not hear or see the fall, so their opinion could not have been based on it.
2. Is the evidence of the opinion necessary to obtain an adequate account or understanding of the person’s perception of the event? S 78(b)
a. No à exclusion doesn’t apply, evidence inadmissible as opinion evidence i. Purpose of this is to allow the inclusion of evidence where primary
facts are too evanescent (quickly fading) to remember or too complication to be separately narrated. Lithgow City Council
1. E.g. where it’s too hard to explain exactly why someone appeared drunk. However, this was not the case – the location of the body could have been measured and detailed.
ii. Necessary à opinion could not be admitted unless it was the only way to obtained an account of their perceptions. Lithgow City Council
1. Although the business record was the only evidence tendered, they coukd have been called as witnesses to give more evidence.
b. Yes à go to 3
3. Evidence of the lay opinion is excluded from the opinion rule, evidence is admissible. S 78
a. Examples à identity of the individuals, apparent age of a person, speed at which something is moving, state of the weather, whether someone was under influence of alcohol
S 78 Exception: lay opinions
• The opinion rule does not apply to evidence of an opinion expressed by a person if:
o (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
o (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
iii. Evidence of expert opinion s 79
1. Does the person have specialised knowledge based on the person’s training, study or experience? S 79(1)
a. Specialised knowledge? à not defined by the Act.
These were confirmed by the HCA as separate elements in Dasreef
i. Likely has to be knowledge rather than just belief or speculation AND specialised as opposed to held generally in the community.
ii. ALRC has explained that whether the person was specialised knowledge is a matter of discretion left for the Court.
iii. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understand of the subject matter.
1. It may not require any formal qualifications – however their experience must result in an acquisition of knowledge.
b. Does specialised knowledge contain consideration of reliability?
i. Tuite v The Queen [2015] VSCA
1. VSCA approved conclusion reached in NSW of McIntyre and Tang that à the language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.
2. NB. The Court did say reliability was relevant for the purposes of s 135/7 as based on the Dupas decision, however this has been overturned by IMM.
c. Yes à got to 2
d. No à exclusion doesn’t apply, evidence inadmissible as opinion evidence (try lay opinion)
2. Is the opinion evidence (actually) wholly or substantially based on that knowledge? S 79(2)
a. Examples:
i. HG v The Queen [1999] HCA
1. Opinion must be presented in a form that makes it possible to tell whether it is based on specialised knowledge.
2. The opinion that the child had not been assaulted by the accused but by her natural father sometime earlier was not based on the psychologist’s ‘specialised knowledge’.
a. On the contrary, this opinion was based on
speculation, inference, personal and second hands views which went well beyond field of psychology.
Gleeson CJ b. Honeysett v The Queen HCA
i. Called an anatomist to identify who a person in the CCTV footage was.
ii. Goes beyond anatomy study
à
this field isn’t concerned with identification. The Court concluded that his opinion was not based on his specialised knowledge of anatomy, but merely hisobservations.
iii. His opinion was not based on actual measurement but visual assessment – he was in no better position than the lay observer (fact finder).
c. Dasreef à Heydon J’s judgement upholds the common law basis rule.
i. The expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’ and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observation so as to produce the opinion.
1. Called expert evidence on how much the employee was exposed to silica for a workplace negligence case.
Traditional common law
‘basis rule’
Evidence must be presented so the fact finder can understand how their expertise applies to assumed or observed facts.
1. Identify assumptions 2. Prove facts relying
on them
3. State reasoning Does this still apply? à uncertain.
Was upheld by Heydon in Dasreef
Try and satisfy test if possible to avoid doubt.
They will now generally go to weight of the evidence – and not an exclusion on their own.
2. Expert produced very specific quantitively amounts without showing calculations.
3. His evidence must demonstrate that his knowledge
permitted him to measure of estimate this amount of silicia to which a worker undertaking the work in the conditions the worker was in. He was unable to suggest his experience enabled him to give anything other than ballpark figure estimation.
d. Kyluk
i. D relied on Heydon in Dasreef (that the basis rule applied to the EA) therefore prosecution’s expert evidence regarding soil analysis had to reveal who did the testing, what was done and the facts that give rise to it.
ii. Schmidt & McCallum: even if facts which the expert ‘assumes’ or
‘accepts’ in reaching the opinion are not provide, the opinion may still be admissible.
iii. Therefore opinion is arguable admissible under s 79 à however was still excluded under s 135 because important facts supporting the expert opinion have not been proved (lack of probative value).
e. Langford v Tasmania [2013] NSWCCA
i. An expert witness called to give evidence about if the fire could have been started by car battery à but he relied on findings from people at the car dealership (other people’s evidence).
ii. Accepts limited version of basis rule from Dasreef à the failure to prove facts upon which the expert has relied to form the opinion will therefore not affect the application of s 79, unless the evidence is excluded for another reason It will be admissible.
iii. Proof or lack thereof of the underlying facts is relevant to the weight of the evidence.
