MLL334 EVIDENCE
EXAM NOTES
TRIMESTER 2 2017
Table of Contents
TOPIC 1 – Introduction and Overarching Concepts ... 4
Course Overview……….4
Nature of Evidence Law……… 4
Sources of Evidence Law………..………..……….4
The Objectives of Evidence Law………..5
Overarching Concepts: Evidence in the Courtroom………..5
Witness Testimony………..….5
Physical objects or exhibits……….6
Documents………....6
Direct, Indirect and Circumstantial Evidence……….………..7
Outline of the Evidence Act………..……7
Burden of Proof……….…9
Legal and Evidential Burdens………..10
Civil Proceedings………..12
Standard of Proof……….13
TOPIC 2 – Verbal Evidence………16
Competence and Compellability……….16
Competence……….16
Compellability……….…18
Witness Examination……….21
Examination in Chief………..21
Cross-Examination………..23
Re-Examination……….25
Answer Template for Question on Verbal Evidence……….………..25
TOPIC 3 – Documentary Evidence and Other Evidence………..27
Is it a Document?……….27
Is it Documentary Evidence? s47(1)………..28
s48 Proving Contents of Documents……….28
Is the Document Unavailable? s48(4)….……….30
Is the Document Voluminous and Complex? s50(1)………..30
If not Documentary Evidence is it Other Evidence? (Non-verbal and Not Documentary)………..31
When and How can a View Take Place?……….31
TOPIC 4 – Relevance……….……….33
Is the Evidence Relevant?……….33
TOPIC 5 – The Hearsay Rule……….….………..35
ISSUE: Is the Statement Hearsay? (and therefore excluded)…..………35
Element 1: Hearsay evidence must be a previous representation made by a person………..………35
Element 2: The fact must be intended to be asserted……….36
Do any exceptions apply to the Hearsay Rule? (and therefore make evidence admissible)……….37
Evidence relevant for non-hearsay purpose: s60……….37
First-hand hearsay……….…37
More remote forms of hearsay: s67-75 (not first-hand hearsay)……….41
TOPIC 6 – Admissions……….………..42
ISSUE: Is the Admission Admissible? ………..……….….….42
Step 1: Is the statement an admission?……….42
Step 2: Do any exclusions apply? (therefore making the admission inadmissible)……….43
TOPIC 7 – Opinion Evidence……….………..46
ISSUE: Is the Opinion Admissible?……….………..………46
Step 1: Is the statement an opinion?……….46
Step 2: Do any exceptions apply? (therefore making the opinion evidence admissible)…………..46
Step 3: If one of the exceptions apply do any discretionary exclusions apply?………48
TOPIC 8 – Tendency and Coincidence Evidence………..……….50
Is the similar fact evidence (tendency or coincidence) admissible?….………50
Is the fact similar evidence?……….50
Identify if civil or criminal case………51
Similar fact evidence when not directly relevant to fact in issue (circumstantial)……….52
TOPIC 9 – Credibility and Character Evidence………..53
TRIGGER: Does the evidence relate to the accused’s credibility?………..…….53
Is the evidence only relevant for the purposes of credibility?………53
Is the credibility evidence admissible? (Prima facie, no)……….………..53
ISSUE: Do any exceptions apply? (therefore making the credibility evidence admissible).…………..54
TOPIC 10 – Privileges……….57
Is the communication privileged?………..………..………57
What privilege applies?...………57
Client legal privilege……….57
Exceptions: Loss of client legal privilege……….………..59
Privilege against self-incrimination……….……….61
Matters of state privilege s130……….………..61
Settlement negotiations………..62
TOPIC 11 – Discretions to Exclude Evidence….………63
s135 General discretion to exclude evidence (civil and criminal cases)……….63
s136 General discretion to limit use of evidence (civil and criminal cases)……….…………64
s137 Exclusion of prejudicial evidence (criminal proceedings).……….……….64
s138 Discretion where court can exclude improperly obtained evidence………..64
TOPIC 1 – INTRODUCTION AND OVERARCHING CONCEPTS
Evidence law is the body of law that controls the type of information or data that is receivable by court.
Evidence law is a body of rules, and what these rules say and try to do is dictate what information and data those parties can actually tender in court to try to prove their case.
Evidence law is the branch that defines the type of information that can be received by a decision maker (whether a judge sitting alone or member of a jury) that may properly be used by the decision maker in the resolution of the factual issues in dispute in a case.
Information that can be received for this purpose is called ‘admissible’. Information that is excluded is called ‘inadmissible’ – it does not form part of the relevant inquiry. Thus, evidence law is largely concerned with distinguishing admissible from inadmissible information.
Evidence law tries to logically set in place certain rules and protocols regarding firstly, what type of information can make their way to court to be considered, and secondly how much weight should be given to the particular types of information.
Evidence can be lead in for a number of reasons i.e. because it relates to the particular event or it is directly relevant to the credibility of the witness or reporter of events.
Until the new Act, Evidence law was common law based. The Uniform Evidence Act (Vic) 2008 (UEA) is based on the Uniform Evidence Code: About 12-13 years ago the States’ and Territories met to coordinate a set of principles that could apply to the country as a whole.
Victorian courts are not bound by decisions in other state jurisdictions. We can find their decisions persuasive, but not binding.
Course Overview
Nature of Evidence Law
Sources of Evidence Law
The cases that we look at will help clarify the meaning of the provisions and more importantly offer an example of their application. It is acceptable to reference cases from any of the jurisdictions with the uniform legislation.
Evidence law sets out the rules of what can be received by the courts and what cannot. To achieve an accurate result, the laws about evidence should (at least rationally) identify and pursue only those objectives which help to achieve that result. In particular, three relevant objectives can be identified:
• Tries to ascertain the truth- The rules of evidence should be designed to reach the true or correct outcome pursuant to the substantive law. These rules are designed so that the decision maker can actually work out what factually, truly happened in relation to the event in issue. Anything that may mislead the decision maker should not be allowed and must be kept out.
• Protective principle- An unmitigated search for the truth can sometimes lead to
unfairness. We need to put in place rules that protect people from unfair prejudice. For example, if a person has be convicted of a similar offence and it’s likely to inflame the decision maker, or lead to the decision maker giving disproportionate consequences, we need to exclude this. Sometimes the truth needs to be compromised to make way for other ideals, that is to protect people that may be prejudiced or disadvantaged.
• Disciplinary principle- Part of the role of evidence is to throw certain evidence out in order to discipline the police and not to encourage certain measures of obtaining evidence. Evidence obtain inappropriately will not be allowed.
The main objectives of this Act are to set in place rules that allow information which is reliable (i.e. searches for the truth) and relevant (we don’t just let in anything) unless the information will unfairly prejudice a person involved in the court proceeding.
The best place to start with the 2008 Evidence Act is with the various types of evidence that are dealt with by the legislation and the overall scheme of the legislation.
The legislation deals with three types of evidence:
1. Witness testimony
2. Physical objects or exhibits 3. Documents
The Objectives of Evidence Law
Overarching concepts: Evidence in the Courtroom
1. Witness Testimony
Witness testimony is usually called oral evidence or verbal evidence.
Of the three types of evidence, oral evidence is the most problematic. It is problematic since it is based on the perceptions and memory of a human being. Human beings are bizarre,
unpredictable, fallible and potentially dishonest. When you examine a witness you never know exactly what will come out of his or her mouth – particularly during cross-examination.
However, the evidence that the witness gives will fall into one of these three types:
1. It will be honest evidence 2. It will be dishonest evidence
3. It will be honest but mistaken evidence
Working out which state they are in has proven to be elusive as far as the courts are concerned.
Facial micro expressions, polygraph tests and brain fingerprinting are not accepted by the courts as being conclusive techniques that detect dishonesty in a person the fact is that people do lie despite taking an oath. If they did not, the offence of perjury would not be necessary.
Cross-examination is about testing a witness – not only for honesty but for accuracy (both fall within the concept of ‘reliability’). If a witness is lying or mistaken, then it will be desirable (and theoretically possible) to expose this by way of cross-examination. The assessment of a witness in terms of his or her reliability will be heavily influenced by their performance under cross- examination.
We will not see many examples of exhibits or physical objects in any of the cases that we look at and we will not cover this type of evidence in great detail.
Note: exhibits or physical objects are referred to as real evidence and in the Evidence Act they are referred to as views.
There is a large array of potentially relevant items recovered from a crime scene that might be used (adduced) as evidence in a trial. For example, a murder weapon such as a rifle that is owned by the accused, or it could be a serum sample such as blood or saliva recovered from the crime scene.
In most cases, if not all, exhibits will be treated as circumstantial evidence. For example, the accused might be the registered owner of the rifle used to murder the victim but that alone does not reveal that they are guilty; it merely creates suspicious circumstances that might be explained with an innocent explanation (i.e. the rifle was stolen one week before the murder).
2. Physical Objects or Exhibits
Note: circumstantial evidence will usually give rise to two or more possible explanations of its existence.
Despite the fact that documents are a very common source of evidence particularly in
commercial litigation we will not spend much time looking at the provisions of the evidence act that deal with documents.
Documents will appear in many other sections of the act apart from sections 47 to 51 which addresses documents. For example, documents may violate the hearsay rule as we shall see later on.
In fraud and tax evasion cases, there can be a very large number of documents that will be admitted as evidence. A document might include such things as: an airline ticket that is
introduced to support an alibi; or a sales receipt for a large quantity of potassium or nitric acid (both are ingredients that can be used to make a bomb). Bear in mind that the presence of online transactional databases leads to an enormous amount of information being generated from online transactions. This is becoming a very common source of documentary evidence, and the Evidence Act was drafted to accommodate documents that are produced by a computer.
All of the different types of evidence (whether it is a document, exhibit or eyewitness) can be characterized as direct evidence indirect evidence or circumstantial evidence. We will consider each of these terms as they appear in the later sections. For example, the terms direct and indirect are used in the Evidence Act as we shall see when we look at relevance.
The Act creates three stages that any item of evidence (witness, exhibit or document) must survive before it can be admitted. If an item of evidence fails to survive a single stage it will be excluded.
1. The evidence must be relevant
2. The evidence must not violate any exclusionary rule 3. The evidence must satisfy the discretion of the trial judge If the evidence survives each stage it will be admitted.
The diagram below which appears in the Evidence Act summarises the three stages. You can see that the first box begins with the requirement of relevance and the last box finishes with
3. Documents
Direct, Indirect and Circumstantial Evidence
Outline of the Evidence Act
the discretion of the trial judge. All of the other boxes in between relate to the exclusionary rules in the act.
There are many exclusionary rules in the act. If an item of evidence fails any of the requirements then it will be excluded.
Note: it is necessary to object to the admission of the evidence otherwise it will usually be admitted.
A simpler diagram that represents the three stages can be drafted as follows:
