Simplified Evidence Road Map
1. State: This question raises the issues of…
2. State: The evidence in question is [evidence]. This is [pick from below] evidence.
a. Real e.g. fingerprints, CCTV footage, weapons b. Testimonial
c. Documentary e.g. real or testimonial depending on use
3. How is the evidence relevant?
a. Directly The evidence is directly relevant as it tends to PROVE [state the fact in issue – i.e. physical element, mental element or credibility of witness e.g. lack of consent, penetration etc]. It is therefore prima facie admissible at trial, subject to offending an exclusionary rule (HML v The Queen).
b. Circumstantially The evidence is circumstantially relevant as it the jury is being asked to infer from [evidence] that [how it relates to fact in issue] (Shepherd). The evidence may constitute an ‘indispensable links in a chain of reasoning towards an inference of guilt’ (Shepherd). It is therefore prima facie admissible at trial, subject to offending an exclusionary rule (HML v The Queen).
c. State (if in doubt): The threshold for relevance is not high. Evidence will be relevant ‘if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding’ (Goldsmith v Sandilands per Gleeson CJ).
d. State (if not relevant): In this instance the evidence is not relevant as it is of no probative value: it does not directly or indirectly assist in proving or disproving a fact in issue or a fact relevant to a fact in issue, nor does it affect the credibility of any evidence. It is therefore not admissible, and it is not necessary to consider whether an exclusionary rule applies.
4. Consider rules of admissibility
a. Bolster (XN ONLY) subject to exceptions b. Finality (XXN ONLY) subject to exceptions
c. Hearsay (XN AND XXN) subject to hearsay exceptions
d. Opinion (XN AND XXN) subject to common knowledge, observation or expert exceptions e. Propensity/similar fact (XN ONLY – Criminal) unless for a permissible use
f. The Shield (XXN ONLY – Criminal) subject to exceptions where shield is lowered
5. Consider discretions to exclude a. Fairness discretion (Christie) b. Confessions (Swaffield)
c. Public policy discretion (Bunning v Cross)
d. Residual unfairness discretion(?) (Police v Dunstall)
6. Consider other factors?
a. Comment on weight to be given to evidence i.e. probative value b. Is this the best evidence? Identify what the best evidence would be c. Obligations of disclosure?
i. P must disclose everything
ii. D must disclose notice of expert evidence AND notice of alibi
Principles of XN, RXN and Bolster/Credibility Rule
Principles of XN, RXN
1. Who may be called as a witness?
a. State: Any party is entitled to call any person as a witness, provided they are ‘competent’ within the meaning of s 9(1). Competence refers to the mental and physical ability of a witness to give sworn evidence.
i. Presumption of competence
ii. If not competent (disabled or young child) unsworn less weight: s 9(2)
b. State: A competent witness is compellable. This means they must attend court and give evidence or face the threat of a penalty.
i. Exception if testifying against a close relative where substantial risk of serious harm to relationship or to prospective witness: s 21(1)-(2)
1. But no protection for spouses: s 16 c. NB* Vulnerable witnesses:
i. Support person/communication partner/special arrangements for protecting vulnerable witnesses in crim proceedings: 13A
ii. Support person/communication partner for young children: s 12
iii. Courts power to make audio visual record of evidence of vulnerable witness: s 13C
2. Prosecution has an ethical obligation to call all reliable, material witnesses: R v Apostilides
3. No leading questions
a. State: Leading questions are ordinarily inadmissible in examination in chief and only permitted in cross examination.
b. Exception: hostile witnesses: s 27
i. State: Per s 27 of the Evidence Act (SA) counsel can seek permission to have the witness declared hostile.
1. This would happen in a voir dire.
2. If the judge grants permission counsel can begin cross examining the witness.
3. Cannot just be forgetful – must be ‘deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him/her for the
advancement of justice’: R v Hutchinson 4. In practice this is rare
4. Using documents to refresh witness memory
a. State: where a witness’ memory is exhausted, can seek permission to have the witness refresh their memory from notes or a prior statement.
i. Notes must have contemporaneity and accuracy; [comment on this].
ii. Sufficient questions will have to be asked in chief to demonstrate on those matters before an application is made to use them: Hetherington v Brooks
5. No prior consistent statements (see Bolster/Credibility Rule) Bolster/Credibility Rule
1. State: A witness/evidence cannot be called to bolster the testimony of another witness/prior consistent statements cannot be tendered UNLESS an established exception to the Bolster/Credibility rule applies.
2. Exceptions:
a. Rebut allegation of recent invention
i. State: Per Nominal Defendant Case, a victim can rebut an allegation made by the defence that the allegation against the accused was only recently made-up for an ulterior motive. This exception allows a victim or witness to tender evidence showing that they had already made the allegation before they would have had an ulterior motive to lie. This is presented in re-examination.
1. E.g. can tender prior sworn statement to police not for truth of statement just to restore credit of W (otherwise inadmissible)
b. Prior identification of the accused
i. State: Per Alexander v R, a police officer can testify that the complainant positively identified the accused to the officer directly after the event where the victim is no longer sure, after an extended period of time.
Principles of XXN and Finality/Collaterality Rule
Principles of XXN
1. Line of questioning: relevant, appropriate
a. State: The purpose of cross examination is to expose weaknesses and inaccuracies in examination in in chief and to undermine the credit and weight of the other party’s evidence. Counsel may ask any questions in order to elicit admissible evidence relevant to any fact in issue or the credit of the witness: ss 22-23 EA (SA)
b. State: Questions must be ‘appropriate.’ Questions which are misleading or confusing, unnecessarily complicated, based on a stereotype (sex, race, ethnicity, culture, age, disability) will be disallowed: s 25(1) EA (SA); SA Bar Assoc, Barristers’ Conduct Rules ss 60-61
c. State: the court also has discretion to disallow questions which appear to be vexatious and not relevant: s 22 EA (SA)
2. Comply with rule in Browne v Dunn
a. State: Pursuant to the rule established in Browne v Dunn, must give W opportunity to comment on any issue in their testimony that will be contradicted with other evidence or criticised in closing address.
Finality/Collaterality Rule
1. State: Pursuant to the Finality rule, collateral facts cannot be pursued beyond cross-examination. A cross-examiner cannot lead further evidence to disprove or rebut the answer given in cross-examination in relation to collateral facts.
a. Piddington v Bennett and Wood: facts not constituting the matters directly in dispute between the parties i. I.e. bank manager testified that didn’t take money out, but that didn’t mean W wasn’t at the scene b. Goldsmith v Sandilands: facts affecting only the credibility of a witness
2. Exceptions:
a. Prior inconsistent statements:
i. Oral statement You can call the person that heard the previous statement to testify for the purpose of diminishing the credibility of the witness. It’s not a hearsay use, because you’re not proving that the statement, they initially made is true, you are proving that they are not a credible witness: s 28 EA (SA)
ii. Written statement s 29 EA (SA) 1. Authentication, ask:
a. Do you recognise?
b. Is it yours?
c. Is that your signature?
b. Prior convictions denied by witness:
i. State: S 26 of the Evidence Act (SA) provides a statutory exception to the Finality rule where a witness is questioned on their criminal history: s 26 EA (SA)
c. Bias, interest or corruption
i. State: Where a suggestion of bias, interest, or corruption on the part of a witness is denied by that witness, independent evidence may be led to establish such bias, interest or corruption (R v De Angelis; R v Umanski).
d. Incapacity that affects reliability
i. State: Where the credibility of the witness is affected by a physical or mental condition, evidence as to that condition may be tendered as an exception to the Finality rule: Toohey
1. Toohey v Metropolitan Police Commissioner: ‘If a witness purported to give evidence of something which he believed that he had seen at a distance of 50 yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not see anything at a greater distance than 20 yards’:
2. Karpany and Bromley v The Queen: witness had schizophrenia
Hearsay (XN & XXN)
Rule: The rule against hearsay prohibits the use of out of court statements in order to establish their truth, recognising the inherent unreliability of such evidence and the inability to test the veracity of the statement in cross examination:
Subramanium v The Public Prosecutor 1. Consider: Is there an OOCS?
a. State: Here we have an OOCS statement and so it needs to be considered whether the [testimony, receipt etc]
offends the rule against hearsay.
2. What is the OOCS?
a. State: the OOCS is [oral/a document]
i. Oral (testimonial) e.g. witness in court re-telling what they or someone else said outside of court.
ii. Written (documentary) e.g. receipt, newspaper, forensic report, airline ticket, suicide note, will
3. How is it relevant?
b. Original (non-hearsay) use relevance to a material fact in issue does not depend on establishing the truth of any fact asserted in the statement Prima facie admissible (NB* subject to authentication for written OOCS, unless caught by s 53)
i. Examples:
1. Proving fact statement was made a. Subramanium: e.g. threats 2. State of mind
a. Walton: if you have a number of OOCs can collectively go to state of mind of speaker
i. Kamleh: suggests you may need more than one intention 3. Res gestae
a. Fragomeli: part of the event, admitted because of their spontaneity and intrinsic reliability; ‘I’m not turning my back on this guy ... because he’s going to stab me’
4. Piece of original/real evidence from which a circumstantial inference can be drawn a. Lydon: A gun and two scraps of paper (saying ‘Sean rules’) were found along the
route of a road passed by a car with which the prosecution sought to link the defendant:
c. Hearsay use relevance to a material fact in issue depends on establishing the truth of any fact asserted in the statement prima facie inadmissible, go to Step 4.
4. Exceptions:
a. State: However, the hearsay evidence can still be admissible if it falls within an established hearsay use exception. If the evidence falls within a hearsay use exception, it may be used for its hearsay purpose
i. NB* subject to authentication for written OOCS, unless caught by s 53
b. If statement was made orally:
i. Admissions/statement against interests by parties
1. This applies where the accused person confesses to a crime to a third party. The 3rd party can then testify that the accused confessed to them.
ii. Res gestae (statement made under pressure during a crime)
1. Ratten v R: 000 call saying ‘help me, my husband is about to kill me’, before being shot dead;
drama leading to the event assumed such intensity and pressure that statement reflects what was unrolling
2. R v Andrews: Victim identified his attacker when police arrived, saying “the bitch just stabbed me”; statement must be made under high pressure circumstances - immediacy and urgency suggests no possibility of any concoction or distortion.
3. R v Duong: statement ‘an instinctive reaction to that event’ such that ‘no real opportunity for reasoned reflection’ ever transpired
iii. Statement identifies a party to a telephone conversation:
1. Pollit: Contract killing where wrong person killed and hit man sought payment; identity was in issue, HCA split 3/3, so application is unclear.
c. If statement is written:
i. Statement forms part of a genuine business document
1. Exemption applied to business records such as invoices, contracts, receipts or banking records: EA s 53
2. Docs relating to the transportation or shipments: EA s 45
3. Apparently genuine documents purporting to contain statements of facts: EA s 52 4. Banking records: ss 46-51
ii. Other CL and statutory exceptions
1. In public documents created for public use, by person under duty to record: Halpin Subramanium v
Public Prosecutor
Facts: S charged with possession of 20 rounds of ammunition. Defence was that Chinese terrorists forced him to carry ammunition on threat of death to self and family. S testified but judge prevented him repeating what the terrorists said on the basis of the hearsay rule
On appeal:
an original not hearsay use
fact that the statements were made relevant to duress
doesn’t rely on truth that terrorists would have killed him or his family
relevant that he believed they would
jury just had to believe the statements were made and scared S
Walton
and then Kamleh
Facts (Walton): Walton charged with murdering his ex-wife.
His GF testified he went away, returned covered in blood, and to the fact that he said “I killed my ex-wife”
Walton rang ex-wife and arranged to meet
Ex-wife had told a group of people “I am off to town to meet Walton and buy Christmas presents for the kids”
Held: the ex-wife’s OOCS was admissible as evidence of her state of mind (her intention to meet Walton) + relevant to actually meeting him
As well as this state of mind through GF’s testimony
Later authority in Kamleh: one intention alone never likely to be admissible? Does that really only apply to situations like this?
Fragomeli Facts: Fragomeli charged with manslaughter by stabbing in the northern suburbs of Adelaide after an alcohol-fuelled traffic altercation Argument about whether V’s statement:
‘I’m not turning my back on this guy ...
because he’s going to stab me’
was hearsay and inadmissible [also issues of relevance and timing]
Held: The OOCS held to be part of the events and relevant and admissible – upheld on appeal
‘In some circumstances statements which would otherwise be treated as hearsay and inadmissible are admitted because of their spontaneity and intrinsic reliability [67].
Exceptions Ratten v R
Res gestae situation (1) – pressure of events
Facts: Accused shot dead his wife She called for police just before the shooting.
Issue: whether call was part of res gestae.
Held: the question is whether the statement was made in conditions of involvement or pressure of events as to exclude the possibility of concoction or distortion. Consider:
1. narrative statement where speaker disengaged from event and able to construct or adapt the account – exclude 2. drama leading to the event assumed such intensity and
pressure that statement reflects what was unrolling – admit Andrews
Res gestae situation (2) – where concoction or distortion is avoided
Facts: D charged with murder. Victim identified his attacker when police arrived, saying “the bitch just stabbed me”
Held: in circumstances that are so dramatic, you can include the evidence as reliable and as evidence of being stabbed
Question to ask: can the possibility of concoction or distortion be disregarded by the pressure of the event
Test:
Statement must have been:
made in circumstances so unusual, startling or dramatic as to dominate the thoughts of the victim
