1. IS THE EVIDENCE RELEVANT?
• S56 – evidence that is relevant for a proceeding is admissible
• S55 – IS THE EVIDENCE THAT IS RELEVANT IN THE PROCEEDING, IF IT WERE ACCEPTED, COULD RATIONALLY AFFECT (DIRECTLY OR INDIRECTLY) THE ASSESSMENT OF THE PROBABILITY OF THE EXISTENCE OF A FACT IN ISSUE IN THE PROCEEDING? – does the evidence go to proving a fact in issue?
o (2) Evidence is not taken to be irrelevant only because it relates to
▪ (a) the credibility of a witness
▪ (b) the admissibility of other evidence
▪ (c) a failure to adduce evidence
• Things to consider when determining the relevance of evidence:
o Does the jury have the opportunity to reach these conclusions themselves without the evidence – Smith v The Queen
▪ Is it founded on evidence that is no different to what is available to the jury?
o Does it add to the description of the defendant? (wearing items, making them walk in a certain way, making them talk) – Evans v The Queen
• Other sections to consider:
o S57 – if the admissibility of evidence depends on whether another piece of evidence is relevant, the court can admit that evidence if it reasonably sees fit (1(a)) or subject to the other evidence being admitted (1(b))
o S58 – (1) the court can draw an inference as to the authenticity of evidence
Remember that the courts are to assess the relevance of a piece of evidence on the assumption that it is reliable – IMM v The Queen
• Reliability goes to the concerns in sections 135 and 137 and considers the probative force of the evidence
If the evidence passes on relevance grounds, now consider whether it is excluded by the hearsay rule?
2. DOES THE HEARSAY RULE APPLY TO THE EVIDENCE?
S59 – prima facie, evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation
• Is the representation hearsay?
o Is there a previous representation?
▪ A representation made otherwise than in the course of giving evidence in the proceeding
▪ Can be express or implied
▪ Not intended by the maker to be communicated
▪ A representation that is not communicated for any reason o Was the previous representation made by a person?
o Can it be reasonably be supposed that the person who made the representation intended to assert the existence of a fact? – what was the purpose of the person making the statement?
▪ Walton v The Queen
o The representation must be adduced to prove the actual existence of the fact
▪ Subramanianm v The Queen
▪ Kamleh v The Queen - not that he turned up the TV but that he was actually in the room
• Things that are not a hearsay purpose
o Facts to prove the alleged terms of an agreement – Subramaniam o Inferences of guilt
o Evidence to show a person’s state of mind
CRIMINAL Maker Available
S66 – applies to criminal proceedings where the person who made the previous representation is available give evidence about an asserted fact
• (2) if that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
o (a) that person or
o (b ) a person who saw or otherwise heard or perceived the representation being made if when the representation was being made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation
• (2A) Things to consider when determining whether the asserted fact was fresh in their memory o (a) the nature of the event concerned
o (b) the age and health of the person
o the period of time between the occurrence of the asserted fact and the making of the representation
• If the maker is available, they MUST be called
• (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
• (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Relevant considerations for fresh in the memory:
• the temporal connection being hours or days no longer applies, hence the result of 2A, still worth considering – Graham v The Queen
• fresh in the memory no longer means recent or immediate, consider the nature of the event occurred (e.g.
child sexual assault and them later telling their friends and family), consider delay in bringing proceedings under s XX – R v XY; ISJ v The Queen
• consider reactions to approaches (esp re sexual assault and then they are having sex years later with their partner and they still feel disturbed) – LMD v R
• Representations by sexual assault complainants made 20 years after the alleged assaults, here 20 years was considered too long of a time – Clay v The Queen
• Sexual assault case, 12 years was not considered determinative, “there is no bright line beyond which it cannot be fresh in the memory” – Pate
• Representations made within minutes or hours of the event are definitely fresh – Papakosmas
• Continuation of conduct refreshens the memory - Le
Note the role of s66(3) – it is an exception to s66(2)
• This section precludes the use of s66 to be used to tender police statements
• (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person place or thing
• “the hearsay rule does not apply to evidence of a previous representation that was made about a fact fresh in the memory of the maker on the provisio that the maker is called to give evidence”
• Refer to LMD v The Queen
• Saunders
o If the witness was talking to police officers at the scent to help them with investigations (e.g. telling them what happened, the nature of the offence and what they saw), this falls outside of the scope of s66(3) and s66(2) applies
o But when a formal statement is made (indicating that they will give evidence in court), s66(3) applies unless it refers to just the identification of a person, place or thing
Maker unavailable
S65 – this section applies in criminal proceedings of a person who made a previous representation is not available to give evidence about an asserted fact
1) See above
2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
a) was made under a duty to make that representation or to make representations of that kind, or b) was made when or shortly after the asserted fact occurred and in circumstances that make it
unlikely that the representation is a fabrication, or
c) was made in circumstances that make it highly probable that the representation is reliable, or d) was:
i. against the interests of the person who made it at the time it was made, and ii. made in circumstances that make it likely that the representation is reliable.
Note – subject to s 67
3. DOES THE OPINION RULE APPLY?
S76 – 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.
There are 6 main exceptions to the rule:
• s50(3) – summaries of voluminous or complex documents
• s78 – Lay Opinion
• s77 – Evidence relevant otherwise than as opinion evidence
• s78A – Aboriginal or Torres Strait Islander customs
• s79 – Expert Opinion
• s81 – Admissions
• Character and expert opinion about the accused persons – s110 and s111
EXCEPTIONS BELOW
Relevant for another purpose
• S77 – if the opinion is admissible for a non opinion purpose, then it can be admissible for the opinion purpose
o This is the opinion version of s60 for the hearsay rule
• R v Whyte – relevant for the credibility purpose
o Mother gave evidence that complainant said “a man tried to rape me” – That is an opinion.
➢ CCA held the evidence was admissible as an exception to 59 under 66 (hearsay criminal) and s 76 under s 78 (lay opinion).
➢ Section 77 would apply because the mother’s evidence is a prior consistent statement – It is opinion evidence being admitted for a credit purpose and s 77 could apply and it could be
used for its opinion use.
Expert Evidence on Credibility
s 108C – Exception: evidence of persons with specialised knowledge
1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:
a) the person has specialised knowledge based on the person’s training, study or experience, and b) the evidence is evidence of an opinion of the person that:
