EVIDENCE
ANSWER GUIDES
COMPETENCE 2
COMPELLABILITY 3
TRIAL PROCESS 5
EXAMINATION-IN-CHIEF 5
CROSS-EXAMINATION 8
DOCUMENTARY EVIDENCE 9
OTHER / REAL EVIDENCE (“VIEWS”) 12
ADMISSIBILITY OF EVIDENCE 13
RELEVANCE: SS 55-58 13
EXCLUSIONARY RULES 15
HEARSAY: S 59 15
ADMISSIONS: S 81 20
OPINION EVIDENCE: S 76 23
EVIDENCE OF PREVIOUS JUDGEMENTS OR CONVICTIONS: S 91 25
TENDENCY EVIDENCE: S 97 27
COINCIDENCE EVIDENCE: S 98 29
CREDIBILITY EVIDENCE: S 102 30
CHARACTER EVIDENCE: S 110 33
PRIVILEGE 34
1. CLIENT LEGAL PRIVILEGE: SS 117-126 34
2. RELIGIOUS CONFESSIONS: S 127 36
3. JOURNALISTIC PRIVILEGE: S 126K 36
4. PRIVILEGE AGAINST SELF INCRIMINATION: S 128 37
5. MATTERS OF STATE: S 130 38
6. PRIVILEGE RE SETTLEMENT NEGOTIATIONS: S 131 38
DISCRETIONS 39
COMPETENCE
STEP 1: Outline the GENERAL RULE
General rule = all individuals are competent: s 12(a)
STEP 2: Does X fall under an EXCEPTION that renders them not competent to give ANY evidence?: s 13(1)
Section 13(1) = A person is NOT competent to give evidence (SWORN or UNSWORN) if they DO NOT have the CAPACITY to:
(a) UNDERSTAND THE QUESTION; or
(b) Give an ANSWER that can be UNDERSTOOD;
• E.g. because of AGE, MENTAL IMPAIRMENT, PHYSICAL IMPAIRMENT, etc.
AND this incapacity CANNOT BE OVERCOME.
(a) If the person CANNOT UNDERSTAND the question
A person is not competent to give evidence if they do not have the capacity to understand a question and this cannot be overcome: s 13(1)(a).
X cannot understand the question because [justify]. This cannot be overcome because [justify].
Accordingly, X is not competent.
(b) If the person CANNOT give an ANSWER that can be UNDERSTOOD
A person is not competent to give evidence if they do not have the capacity to give an answer that can be understood and this cannot be overcome: s 13(1)(b)
X cannot give an answer that can be understood because [justify]. This cannot be overcome because [justify].
Accordingly, X is not competent.
If the person is DEAF or MUTE
• A witness who cannot hear adequately may be questioned in any appropriate way: s 31(1)
• A witness who cannot speak adequately may give evidence by any appropriate means: s 31(2) If person DIES or CEASES TO BE COMPETENT
Evidence that has been given by a witness DOES NOT become inadmissible MERELY because, BEFORE the witness finishes giving evidence, he or she DIES or CEASES TO BE COMPETENT to give evidence: s 13(7)
If NO –
STEP 3: Does X fall under an EXCEPTION renders them not competent to give SWORN evidence?: s 13(3)
aka does X NOT UNDERSTAND the OBLIGATION to tell the truth?: s 13(3) If YES –
X does not understand that they are under an obligation to tell the truth because [justify]. Therefore, X is not competent to give sworn evidence: s 13(3)
STEP 4: Can X give UNSWORN evidence? s 13(4)-(5)
Section 13(4) – A person who is not competent to give sworn evidence can give unsworn evidence – IF the court has followed s 13(5) –
X MAY BE ALLOWED to give unsworn evidence (s 13(4)) IF the court has told X that (s 13(5)):
(a) It is important to tell the truth
(b) They will be asked questions that they know, do not know or cannot remember and they should answer accordingly
(c) They may be asked questions that are true or untrue, and they should agree with the statements they believe are true and they should not feel pressured to agree with the statements they believe are not true
Note: Act does not give unsworn evidence any less probative weight
COMPELLABILITY
STEP 1: Outline the GENERAL RULE
General rule = all competent witnesses are compellable: s 12
STEP 2: Does X fall within one of the EXCEPTIONS TO COMPELLABILITY?
MINOR EXCEPTIONS
1. The Queen and her representative, including heads of Australian States or Territories: s 15(1) The Queen and her representatives are not compellable: s 15(1)
2. Heads of State and Government of other countries: s 15(1)(e) X is a leader of another country. X is not compellable: s 15(1)(e)
3. Australian Members of Parliament if it would prevent them from sitting in Parliament: s 15
X is a member of Australian Parliament and court attendance would prevent X from attending a sitting of parliament. X is not compellable: s 15(2)
4. Judges and jurors sitting in the same proceeding (unless issue concerns bias or voire dire): s 16 X is a judge/juror. X is not compellable: s 16
5. Reduced capacity – Any witness where obtaining their evidence would incur substantial cost or delay in ensuring that the person has the capacity to understand the questions being understood, and adequate evidence on that matter can be obtained from another source: s 14
X would only have the capacity to give evidence after considerable cost or delay because [justify]. The evidence that X needs to give could alternatively be obtained by [insert]. X is not compellable: s 14
MAJOR EXCEPTIONS
1. THE ACCUSED in criminal proceedings: s 17(2) If X is the ACCUSED –
X is the accused. This is a criminal proceeding: s 17(1). Therefore, X cannot be compelled to give evidence as a witness for the Crown: s 17(2)
If the scenario is PRE-TRIAL –
X is the accused. This is a criminal proceeding: s 17(1). Therefore, X cannot be compelled to give evidence: s 17(2). This right exists pre-trial: s 89.
If X is a CO-ACCUSED – Is X being TRIED SEPARATELY?
X is an associated accused of Y. An associated accused is not compellable unless being tried separately: s 17(3)
If TRIED TOGETHER – can be compelled If TRIED SEPARATELY – falls under exception
2. FAMILY MEMBERS of the accused in criminal proceedings: s 18
X is the [Spouse, De Facto Partner, Parent or Child] of Y. A family member of accused in a criminal proceeding (s 18(1)) may make an application to the judge to be excluded from giving evidence: s 18(2).
The judge will grant an application to exclude a family member from giving evidence if the judge accepts that:
• There is a likelihood that harm will be caused to the person or to the family relationship if the person gives evidence: s18(6)(a); and
• The nature and extent of the harm OUTWEIGHS the desirability of the evidence being given: s 18(6)(b)
In making this determination, the judge must consider
• the nature and gravity of the offence: s 18(7)(a)
• the substance and importance of the evidence: s18(7)(b)
• whether other evidence of the same matter is available: s18(7)(c)
• the nature of the relationship between the person objecting and the accused: s18(7)(d)
• whether the person would have to disclose information given to them in confidence: s18(7)(e) From the facts it is clear that harm would likely be caused because [justify].
Arguably, the nature and extent of the harm outweighs the desirability of the evidence because [justify].
Accordingly, the judge may grant the application.
STEP 3: If X is the ACCUSED, has anyone COMMENTED on the accused’s SILENCE?
Rule = No ADVERSE INFERENCES may be drawn from the accused’s silence INCLUDES –
• Failure to answer questions asked by people in authority: s 89; Petty v R (1991) 173 CLR 95 or
• Previous silence about a defence raised at trial: Petty v R (1991) 173 CLR 95 Applies EVEN IF –
o The accused bears an evidential burden in relation to the defence;
o The accused was not specifically asked about the matter which is the subject of the defence, or was asked no questions at all;
o The accused answered questions about other matters;
o The defence was not raised at the committal proceedings; or
o The accused only raised the facts giving rise to the defence after the close of the prosecution case:
Petty v R (1991) 173 CLR 95; Sanchez v R [2009] NSWCCA 171
• The fact that the accused answered some questions but not others: R v McNamara [1987]
If X is the CROWN –
A prosecutor cannot comment on the fact that the accused remained silent or suggest that the accused did not give evidence because he/she was guilty.
(a) Version of Facts Comes from Prosecution Witnesses
Prosecutor stated that the version of the facts relating to the offence has come from [prosecution witnesses]. No breach where prosecutor state that the only version of the facts relating to the offence charges has come from prosecution witnesses: R v Yammine & Chami [2002]
(b) Vague Reference
Prosecutor made a vague reference to X’s silence. A vague reference to accused silence held not to infringe s 20: Miller v R [2011]
If X is the CO-ACCUSED –
X is Y’s co-accused. X may comment on Y’s failure to give evidence.
If X is the JUDGE –
Has the JUDGE suggested the accused is guilty when ADVISING THE JURY?
There must not be any adverse comments made regarding exercise of silence by the accused: s 20.
Judge should advise the jury that the accused’s right to silence should not carry any adverse inference: s 42 Jury Directions Act 2015; Azzopardi v R [2001] (see more p. 23)
If the CO-ACCUSED commented on silence –
The judge can comment on the accused’s failure to give evidence (IF this has been raised by co- accused). HOWEVER, the judge must not make a comment suggesting that the accused’s failure to give evidence is because they are guilty: s 20. [Apply facts of scenario]
Case example: Judge said that X’s failure to contradict [facts] was a partial admission. This was deemed to be an inappropriate direction to the jury: RPS [2000] HCA
TRIAL PROCESS
PRELIMINARY: Did X give an OATH or AFFIRMATION?
General rule = witnesses must give an oath or affirmation: s 21(1) Exceptions = UNSWORN EVIDENCE (s 21(2)) or SUBPOENA (s 21(3)) So –
If X is giving SWORN EVIDENCE –
X is a witness giving sworn evidence and must make an oath or affirmation: s 21(1)
The oath / affirmation is effective even if X (a) did not have RELIGIOUS BELIEF or (b) did NOT UNDERSTAND nature and consequences of the oath: s 24(2)(a)-(b)
OR
If X is giving UNSWORN EVIDENCE –
X is a witness giving unsworn evidence. X does not need to make an oath or affirmation: s 21(2) OR
If X has been SUBPOENAED –
X is being subpoenaed to produce a document/thing. X does not need to make an oath or affirmation:
s 21(3)
EXAMINATION-IN-CHIEF
STEP 1: Outline basics of EXAMINATION-IN-CHIEF
• The aim of examination-in-chief is to allow the witness to give their account in their own words.
• Either party may ask questions: s 27
STEP 2: Did the questioning fall within a LIMITATION in examination-in-chief?
There are two limitations re examination-in-chief – A) Leading questions
B) Reviving a witness’ memory
A) Did the Prosecution ask any LEADING QUESTIONS?
STEP 1: The RULE:
There is a prohibition against leading questions: s 37(1). Can ask open-ended questions only.
[Defined in Evidence Act ‘Dictionary’] leading question means a question asked of a witness that—
(a) directly or indirectly suggests a particular answer to the question; or
(b) assumes the existence of a fact in issue about which the witness has not yet given evidence.
Leading questions are precluded because they assume matters or encourage the witness to make particular representations.
The leading question will be PROHIBITED if –
(a) the prosecution directly or indirectly SUGGESTED a particular answer
X asked [witness] [insert]. This question directly/indirectly suggests [answer]. This question may be categorised as a leading question and is prohibited: s 37(1)
OR
(b) The prosecution ASSUMED THE EXISTENCE OF A FACT IN ISSUE
X asked [witness] [insert]. This question assumed the existence of [insert], which is in dispute and which [witness] has never give evidence about. This question may be categorised as a leading question and is prohibited: s 37(1)
STEP 2: Is the leading question PERMITTED?
Leading questions can be asked in examination-in-chief in some circumstances.
• With LEAVE of the court: s 37(1)(a)
• The question relates to an INTRODUCTORY MATTER: s 37(1)(b)
• With CONSENT / where NO OBJECTION is made (if all parties are represented): s 37(1)(c)
• The question relates to a matter that is NOT IN DISPUTE: s 37(1)(d)
