Table of Contents - StudentVIP

(1)

Advance Rulings and Findings ... 17

The court may make advance rulings and findings before the evidence is adduced ... 17

192A Advance rulings and findings... 17

Competence and Compellability ... 18

Prosecutor has a duty to call relevant witnesses to present the “whole picture” ... 18

Rules of Professional Conduct (NT) ... 18

17.52 A prosecutor must call as part of the prosecution's case all witnesses: ... 18

…Except under circumstances contained in 17.52 (e) – (i) Conduct Rules ... 18

Rules of Professional Conduct (NT) ... 18

In particular, prosecution may not be obliged if the witness is “in the camp of the accused.” ... 18

S 17.52 (h) Conduct rules... 18

Starting point: all witnesses are competence and compellable ... 18

12 Competence and compellability ... 18

Exception: Lack of Capacity – s13 ... 19

…No capacity for one fact does not necessarily preclude capacity for other facts - S13 (2) ... 19

And someone without capacity to give sworn evidence may be able to give unsworn evidence - s13 (3) . 19 Exception: Reduced Capacity (s14) ... 19

Exception: Defendants in criminal proceedings cannot be compelled (s17) ... 19

Section 17(3) – associated defendant is not compellable. ... 19

Exception: Spouses and family in criminal proceedings (s18) ... 19

…If harm outweighs desirability of evidence s18 (6) ... 19

Court will consider factors in s18 (7) in determining the balancing act ... 19

(2)

…unless the offence relates to a DV or similar offence – s19 ... 19

Examination in Chief ... 19

Reviving memory with documents ... 19

Witness not to use docs to aid their memory unless the court gives leave - s32 ... 19

…When giving leave, court will consider factors in 32 (2) ... 19

…including if the witness can remember without the docs - 32 (2)(a) ... 19

…and if the doc created when the events were “fresh in the memory” – 32 (2) (b) ... 19

…Court must also consider factors in 192 (general conditions to give leave) ... 19

Police can use documents (exception to general rule) ... 19

33 Evidence given by police officers ... 20

No leading questions in Exam in Chief ... 20

37 NO leading questions unless the court gives leave ... 20

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless: ... 20

Definition of ‘leading question’ is in the Act Dictionary ... 20

Unfavourable witnesses ... 20

Section 38 – Unfavourable witnesses may be cross-examined with the leave of the court ... 20

“Prior inconsistent statement” – most common way to impeach a witness ... 21

From the dictionary: ... 21

S 43 Prior inconsistent statements of witnesses ... 21

…But cross is limited to the particular evidence that is unfavourable ... 21

Cross Examination ... 21

Leading questions ... 21

Examiner can ask leading questions unless the court disallows it – s42 ... 22

Improper Questions ... 22

Court may disallow improper questions if it falls in categories s41 (3) a-d ... 22

Misleading or confusing - 41 (3) (a) ... 22

Unduly annoying, harassing, intimidating or offensive - 41 (3) (b) ... 22

Tone is belittling, insulting etc - 41 (3) (c) ... 22

Based on a stereotype - 41 (3) (d) ... 22

…But must disallow questions of this type if they are put to a vulnerable witness ... 22

“Vulnerable witness” is defined in s41(4) a – c ... 22

Prior Inconsistent Statements ... 22

Witness can be cross exam about a PIS, oral or written statement – s43 ... 22

(3)

43 Prior inconsistent statements of witnesses ... 22

…and if the PIS is a doc, no requirement to show the doc to the witness in cross... 22

S 43 (1) (b) ... 22

43(2) is essentially a statutory version of the rule in Browne v Dunn ... 22

Starting point: Can’t use inconsistent statement of a third party to contradict evidence in chief of a witness – s44 (1) ... 23

…unless the statement is being admitted into evidence – s44 (2) (a)-(b) ... 23

…or if not in evidence, and its contained in a doc, the doc must be presented to the witness – s44 (3) ... 23

…at which point the doc may be ordered to be produced and/or tendered – s45 ... 23

Rule in Browne v Dunn ... 23

General Rule ... 23

Consequences of breaching the rule ... 23

Recall the witness – eg, see s 46 UEA ... 23

Khamis v The Queen (2010) ... 23

Limits of re-examination – s39 ... 23

39 Limits on re-examination ... 23

Documentary Evidence ... 24

47-51 deal with the means by which contents of documents can be proved ... 24

…Doesn’t mean the document is admissible though! ... 24

Definition of ‘document’ is in the Dictionary to the UEA ... 24

Tendering documents into evidence – s48 ... 24

Photocopy or fax ... 24

Official printed copy of public record ... 24

Admission as to contents... 24

Copy / summary / extract of a business record ... 24

Generated by a device (e.g. computer) ... 24

Transcript of recorded words ... 24

Proof or voluminous or complex documents – s50 ... 24

Summary of a big doc can be tendered subject to the requirements in s50(1) and s50 (2) ... 24

Adducing other evidence ... 24

“Real” (Physical) Evidence ... 24

Can be adduced via s52 providing it satisfies admissibility rules (Ch 3) ... 24

s52 is essentially a catch all saying that rules about documents and witnesses do not preclude the adducing of physical evidence. ... 24

Demonstrations, Experiments, or Inspections ... 24

(4)

Section 53 – A judge may order a demonstration, experiment or inspection ... 24

Subject to conditions ... 25

Not necessary to apply if the demonstration, experiment or inspection is held inside the courtroom ... 25

Evans v The Queen (2007) 82 ALJR 250 ... 25

Relevance ... 25

Always the first question to ask, before admissibility ... 25

Section 56 - Relevant Evidence is Admissible ... 25

Smith v The Queen (2001) 206 CLR 650 at [6] ... 25

…Ch 3 UEA governs admissibility exclusively ... 25

s56 (1) - Except as otherwise provided by this Act ... 25

Definition of Relevant Evidence = “could” rationally affect the probability of the existence of a fact in issue ... 25

55 Relevant evidence ... 25

…And evidence could still be relevant, even if it’s only about credibility, admissibility of other evidence or a failure to adduce evidence ... 25

55 (2) In particular, evidence is not taken to be irrelevant only because it relates only to: ... 25

Hearsay Evidence ... 26

Does the Hearsay rule apply? ... 26

Is it relevant? S55 and s56 ... 26

If No: Doesn’t proceed to be tested by hearsay rules, it’s inadmissible. ... 26

Threshold questions (must all be yes): ... 26

Is it hearsay? S59: ... 26

If yes to both: starting point is that it is inadmissible under the hearsay rule - 59 (1) ... 26

Can we dodge the hearsay rule and get the evidence admitted? ... 26

Was the previous rep a contemporaneous statement about the person’s health, state of mind, feelings etc? – s66A ... 26

Other Exceptions to the Hearsay rule: ... 26

Is the previous representation (can be a document or oral or conduct) being adduced (presented) to prove the existence of a fact asserted in the representation? 59(1) ... 27

Did the person making the representation intend (s59(1)) to assert the fact that you are trying to prove? ... 27

Is the previous representation firsthand hearsay (i.e., based on personal knowledge) - s62? ... 27

Is the original maker of the representation not available to give evidence? ... 28

If the original maker is available to give evidence about the asserted fact, are they being called to give evidence (doesn’t have to be about the fact)? ... 28

(5)

Procedural Considerations ... 29

67 - Notice to be given ... 29

Opinion Evidence ... 29

Starting point: Opinion evidence is not admissible ... 29

76 The opinion rule ... 29

Opinion is not defined in the UEA ... 29

Unless an exception applies… ... 30

Evidence relevant otherwise than as opinion evidence s 77 ... 30

Exception – lay opinion (78) ... 30

…when is it based on what a person witnessed personally - s78 (a) ... 30

Lithgow City Council v Jackson (2011) 244 CLR 352 at [41], [43], ... 30

…and the opinion needs to be admitted to obtain an account of a perceptions’ perception - 78 (b) ... 30

Expert opinion exception – s 79 ... 30

Requirements to satisfy test in s 79: ... 30

Specialised knowledge must be “outside the expertise of ordinary persons” and “sufficiently organised or recognised to be a reliable body of expertise” ... 30

Velevski v The Queen (2002) 76 ALJR ... 30

“Training, study or experience” means specialised knowledge doesn’t have to be university study! ... 30

…but opinion must be wholly or substantially based on the specialied knowledge ... 30

HG v The Queen (1999) 197 CLR 414 at [44], per Gleeson CJ ... 31

Exception: Aboriginal and Torres Strait Islander traditional laws and customs (section 78A) ... 31

Common knowledge rule abolished – common knowledge is not “opinion” ... 31

S 80(b) abolishes the common knowledge rule in a UEA jurisdiction. ... 31

Mandatory and Discretionary Exclusions... 31

The court has a discretion to exclude evidence ... 31

S135 - The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: ... 31

(a) be unfairly prejudicial to a party; or – s 135 (a) ... 31

(b) be misleading or confusing; or – s135 (b) ... 31

(c) cause or result in undue waste of time – s135 (c). ... 31

“Substantially outweighed” – a heavy onus on the party seeking the exclusion ... 31

“Unfairly Prejudicial” - 135 (a) as defined by the ALRC ... 31

Evidence (Interim) (ALRC 26, vol 1, 1985) at [644]. ... 31

Evidence may also be unfairly prejudicial if the fact-finder inclined to give it too much weight.. ... 32

…the inability to test said evidence might lead to this…... 32

…therefore the inability to test evidence might equate to it being “unfairly prejudicial” ... 32

(6)

Uniform Evidence Law (ALRC 102, 2005) at [16.45] ... 32

…Or the court may limit the use of some evidence ... 32

Section 136 – The court may limit the use to be made of evidence if there is a ... 32

danger that a particular use of the evidence might: ... 32

(a) be unfairly prejudicial to a party; or – s136 (a) ... 32

(b) be misleading or confusing – s136 (b)... 32

Court must exclude prejudicial evidence in crim proceedings ... 32

137 Exclusion of prejudicial evidence in criminal proceedings ... 32

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. ... 32

Note: “Outweighed”, not “Substantially Outweighed” ... 32

“Probative value” determined by the opinion and experience of the judge ... 32

Q v Blick ... 32

Illegally and Improperly Obtained Evidence ... 33

138 Exclusion of improperly or illegally obtained evidence ... 33

(1) Evidence that was obtained: ... 33

…a balancing act between the impropriety and the desirability of the evidence ... 33

138 (3) For the sake of determining (1), the court must take into account: ... 33

..If the D proves the evidence was obtained illegally, the onus of proof shifts to the P to persuade the judge that it should be admitted ... 33

Illegally and Improperly Obtained Admissions ... 33

Definition of admission ... 33

(Dictionary) ... 33

An admission will be obtained ‘improperly’ if the questioner failed to do something to allow for the person to respond rationally – s138 (2) (a) ... 34

S 138 (2) ... 34

…Or if they made a false statement that lead to an admission – s138 (2) (b) ... 34

S 138 (2) ... 34

If 138 (2) (a) or (b) exist, the admission must be excluded unless the desirability of admitting the evidence outweighs the undesirability – 138 (1) ... 34

138 (3) For the sake of determining (1), the court must take into account: ... 34

Cautioning of suspects ... 35

139 Evidence will be obtained “improperly” if rules around cautioning are not followed ... 35

139 Cautioning of persons: ... 35

Definition of an Investigating Officer (IO) – Dictionary ... 35

…Does not include an officer engaged in covert operations ... 35

(7)

If the person is under arrest, an IO with the power to arrest must caution before questioning – 139 (1) . 35 139 (1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a

person during questioning is taken to have been obtained improperly if: ... 35

…under arrest also means someone who its clear is likely to be arrested – s139 (5) ... 36

An IO without the power to arrest must caution as soon as they think the person may have committed an offence – 139 (2) ... 36

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: ... 36

Caution to be given in a language that the person can fluently communicate in – 139 (3) ... 36

Admissions Evidence ... 36

Admission = previous representation (including from conduct) made by a party to proceedings that it adverse the the maker’s interests in the outcome of proceedings. ... 36

…and can be inculpatory and exculpatory Statements ... 37

Example of inculpatory: “Yeh, I shot him” ... 37

Example of exculpatory: [Lying] “No, I wasn’t at that place at all” ... 37

Admissions are an exemption to the hearsay rule - s81 ... 37

…as long as it is ‘firsthand’ hearsay – s82 ... 37

82 Exclusion of evidence of admissions that is not first-hand ... 37

Admissions influenced by violence are no admissible – s84... 37

Admissions to an IO performing functions in connection with an investigation not admissible unless the circumstances of the admission make it unlikely that the truth was adversely affected – s85 (1) – (2) ... 37

….to determine whether such circumstances exist, the court must consider the characteristics of the person and the nature of the questioning – s85 (3) ... 37

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: ... 37

Evidence of an oral admission only admissible if the D has signed the record as true – s86 ... 37

The court also has a discretion to exclude an admission adduced by the P if it would be unfair to the D – s90 ... 38

…But the onus is on the D to establish that it would be unfair ... 38

…But s90 should only be applied after the other more specific exclusions in the Act (particularly 138 exclusions) ... 38

Em v The Queen (2007) 232 CLR 67 at [109]. ... 38

The Right to Silence ... 38

UEA – Evidence of Silence (s 89) ... 38

An unfavourable inference must not be drawn from a party’s silence – s89 (1)... 38

…unless the failure or refusal to answer questions is a fact in issue in proceedings – s89 (3) ... 38

Example: required by law such as under motor vehicle legislation – s 89(1) does not apply. ... 38

(8)

Anunga Rules ... 38

Breach = improperly obtained admissions or evidence ... 38

Not specifically dealt with in the UEA, but would constitute impropriety: ... 38

Improperly obtained or evidence - 138 (1)... 38

Improperly obtained admission - s138 (2)... 38

…and Anunga rules don’t just apply to ATSI people ... 38

R v Mohammed [2004] VSC 408 at [57] ... 38

Tendency and Coincidence Evidence ... 38

Starting point: approached with caution ... 38

The presumption of innocence can be undermined by tendency evidence ... 38

Perry v The Queen (1982) 150 CLR 580, at 594 ... 39

What are they and what are the differences? ... 39

TE is evidence of conduct, character or reputation adduced to show that a person acts or thinks in a particular way ... 39

Odgers: ... 39

Tendency = a person’s tendency to act or think in a particular way (TE) ... 39

Example: a person assaulted someone before, therefore likely to do it again ... 39

Coincidence = it is improbable that 2 or more events are coincidence (CE) ... 39

Example: improbable for 4 children to die of cot death (Kathleen Folbic case), mother may be the killer ... 39

CE = a set of circumstances that are unlikely to be coincidence ... 39

…“Coincidence evidence does not directly reflect on a person’s make-up” ... 39

Williams et al, Uniform Evidence Law in Australia (2nd ed, LexisNexis, 2018) at [98-3]. ... 40

The Tendency Rule – s97 ... 40

The tendency rule makes TE evidence inadmissible as a starting point - S97 ... 40

…Unless the party seeking to adduce the evidence gives reasonable notice – s 97(1) (a) ... 40

…And the evidence has “significant probative value” – S97 (1) (b) ... 40

…If evidence pertains to a suspects tendency to be interested or act on child sexual offences – s97A ... 40

…probative value is otherwise defined in the Dictionary ... 40

When determining probative value, the court is assume that the jury will accept that the evidence as credible ... 40

IMM v The Queen (2016) 90 ALJR 529 and ... 40

R v Bauer (a Pseudonym) (2018) 92 ALJR 846 at [69] ... 40

“Significant probative value” means it must be important to the particular facts that it seeks to prove ... 40

R v Lockyer (1996) 89 A Crim R 457 at 459 ... 40

Also Odgers ... 40

(9)

When there are multiple complainants, “significant probative value” must be established by finding a link

between them... 40

McPhillamy v The Queen (2018) 92 ALJR 1045 at [31] ... 41

…Although note that this does not apply to child sex offences anymore – s97A ... 41

The Coincidence Rule – s98 ... 41

Arises when two or more acts are so similar, they must have been done by the same person ... 41

Example: ... 41

Babies buried in the backyard of all 4 of their houses – not a coincidence! ... 41

Makin v A-G (NSW) [1894] Ac 57 ... 41

Probative value of CE and TE against a Defendant must outweigh prejudicial effect ... 41

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution: ... 42

“No rational explanation” test in Pfennig not applicable anymore ... 42

Previous common law test: ... 42

New test is “substantially outweighs prejudicial effect” – a balancing act ... 42

UEA s 101 ... 42

R v Ellis (2003) 58 NSWLR 700 at [94]-[95]. ... 42

“A mere possibility of concoction” (e.g. between multiple complainants) does not reduce the probative value of TE or CE anymore ... 42

Odgers textbook RE IMM v The Queen (2016) 90 ALJR 529 ... 42

…although at common law the possibility of concoction reduced probative value of TE and CE ... 42

Following the decision in Hoch v The Queen (1988) 165 CLR 292 ... 43

The HCA confirmed that the common law rule about concoction was abolished ... 43

R v Bauer (2018) 92 ALJR 846 ... 43

If evidence is inadmissible under TE and CE rules to prove something, you can’t use it for that purpose, even if it is admissible for another reason. ... 43

95 Use of evidence for other purposes ... 43

Notice Requirements ... 43

A party must give reasonable notice in writing to each party before adducing TE or CE ... 43

99 Requirements for notices ... 43

…Unless the court dispenses with notice – s100 ... 43

…Or the evidence is adduced to explain or contradict TE 97(2)(b) or CE 98(2)(b) by another party ... 44

Identification Evidence ... 44

Distinction between recognition evidence and ID evidence ... 44

Recognition evidence is not subject to 114 and 115 rules ... 44

- R v Williams [2019] NSWCCA 53 ... 44

However, may warrant a warning under s165 ... 44

(10)

R v Stewart (2001) 52 NSWLR 301 at [104]. ... 44

Visual Identification Evidence ... 44

Relates to what someone saw but does not include picture evidence ... 44

S114 (1) has the definition ... 44

Visual ID evidence adduced by the Prosecutor is not admissible unless... ... 44

There was an ID parade including the defendant - s114 (2) (a) or ... 44

Such a parade would “not have been reasonable” - s114 (2) (b) or ... 44

The D refused to take part in such a parade - s114 (2) (c). ... 44

Factors the court may consider to establish if an ID parade was “not reasonable” ... 44

See 114 (3) a-d ... 44

Presumed to be unreasonable to have held an ID parade if: ... 44

It was unfair to the defendant - 114 (4) ... 45

The D demanded a lawyer be present (s114 (5) (a)) and it was not reasonably practicable for a lawyer to be present (s114 (5) (b). ... 45

In determining whether it was reasonable to hold an ID parade, court can’t take into account available pictures (s114 (6)) ... 45

…and the ID was made without the person who made it being intentionally influenced to identify the D (s114 (2)) ... 45

Note: Visual evidence does not include evidence observed by touch, heard smelled etc... 45

Requirements of an Identification Parade ... 45

The common law has very specific preferences for an ID parade ... 45

Alexander v The Queen 1981 HCA... 45

People in the line up should be of a similar height, age and general appearance to make the line up fair 45 Q v Fisher CCA 380... 45

Picture Evidence ... 45

S115 provisions do not apply to evidence of recognition of a person shown in a photograph as someone previously known ... 45

- R v Smith (1999) ... 45

Definition of picture evidence – s115 (1) ... 45

Not admissible if it looks like the suspect is in custody – s115 (2) ... 45

Not admissible if the suspect in custody and pic taken before they were in custody – 115 (3) ... 45

…unless the suspect’s appearance has changed significantly since – s115 (4) ... 46

Other exceptions – pic evidence admissible when suspect is in custody if: ... 46

- They refuse to take part in an ID parade – s115 (5) ... 46

- The defendant’s appearance has changed significantly between the time when the offence was committed and the time they were taken into custody - 115 (5) (b) ... 46

- It would not have been ‘reasonable’ to hold an ID parade – s115 (5) (c) ... 46

(11)

Factors the court may consider to establish if an ID parade was “not reasonable” ... 46

- S 155 (6) tells you to take into account the same factors as under 114 to establish ‘not reasonable’ ... 46

- See 114 (3) a-d, and the below presumptions: ... 46

Presumed to be unreasonable to have held an ID parade if: ... 46

It was unfair to the defendant - 114 (4) ... 46

The D demanded a lawyer be present (s114 (5) (a)) and it was not reasonably practicable for a lawyer to be present (s114 (5) (b). ... 46

Problems with picture evidence: ... 46

- ALRC 102 ... 47

Jury Directions and ID Evidence ... 47

Judge must warn the jury about picture evidence – s115 (7) ... 47

116 – Directions to jury (about all identification evidence)... 47

Credibility Evidence ... 47

First step: is the evidence subject to the credibility rules? ... 47

1. Is the evidence relevant? ... 47

2. Is the evidence relevant and admissible for a reason other than credibility? ... 47

Credibility rule starting point (s102) ... 47

102 Credibility evidence about a witness is not admissible. ... 47

Credibility goes both ways ... 47

You can’t BOOST the credibility of your own witness... 48

R v Connolly [1991] 2 Qd R 171 at 173-174] ... 48

Exception to cred rule – attacking cred in x-exam (s103) ... 48

When the credibility rule doesn’t apply in x-exam ... 48

103 Exception – cross-examination as to credibility ... 48

But you can’t just attack credibility at large ... 48

103 (1)... 48

Criminal defendants are particularly protected – 104 ... 48

104 Further protections – cross-examination as to credibility ... 48

D must not be x by P on credibility unless the court gives leave - 104 (2) ... 48

104 (2)... 48

…unless the Ps x relates to whether the defendant is biased, unable to recall or had made a prior inconsistent statement ... 48

- s104 (3) (a): Is biased or has a motive to be untruthful ... 48

(12)

- s104 (3) (b): is, or was, unable to be aware of or recall matters to which his or her evidence

relates; or ... 48

- s104 (3) (c): has made a prior inconsistent statement. ... 48

The court must only grant leave to x a D on their credibility where: ... 48

The D is claiming that the Ps witness is untruthful (S104 (4) (a)) and; ... 49

The evidence adduced by the D does not relate to the events the D is being prosecuted for (S104 (5) (b)). ... 49

D1 can seek leave to x D2 ... 49

- With the court’s leave (104 (2)), D21 may x D2 ... 49

…But the court can only grant leave if D2’s evidence is adverse to D1s case ... 49

104 (6) Leave is not to be given for cross-examination by another defendant unless: ... 49

Exception to credibility rule when rebutting denials (s106) ... 49

For the purpose of rebutting a denial, credibility evidence may be adduced if: ... 49

The evidence was put to the witness and (106 (1) (a) (i) ... 49

The witness denied the substance of the evidence (106 (1) (b) (i) ... 49

…and the court gives leave (106 (1) (b) ... 49

..but leave is not required if the evidence tends to proves that the witness: ... 49

Is biased or has a motive to lie – s106 (2) (a) ... 49

Has been convicted of an offence here or abroad – s106 (2) (b) ... 49

Has made a prior inconsistent statement – s106 (2) (b) ... 49

Is or was unaware of related matters s106 (2) (d) ... 49

Has knowingly or recklessly made a false representation under an obligation ot law s106 (2) (e) ... 49

Exception to credibility rule - re-establishing credibility (s108) ... 49

108 (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. ... 49

Credibility of people who are not witnesses (Part 3, Div 3) ... 49

Credibility evidence only allowed if it substantially affects the credibility of the maker ... 50

108A Admissibility of evidence of credibility of person who has made a previous representation ... 50

..To determine “substantially affects”, the court must consider… ... 50

- Whether the evidence shows reckless and knowing disregard for the truth or the obligation to tell the truth (s108A (2) (a) and ... 50

…and there are more protections for an accused D who is not a witness ... 50

- If the non-witness is the D, the court must give leave for the credibility evidence to be adduced (s108B (2)). ... 50

- …but no leave required if the D is biased or motive to lie(108B (3) (a)), unable to be aware or recall matters (108B (3) (b)), or made a prior inconsistent statement (108B (3) (c)). ... 50

- If leave is required, court must consider 108B (4) before giving it ... 50

(13)

Character Evidence ... 50

Evidence about the character of the defendant (Part 3.8) ... 50

Section 110 permits the defendant to adduce evidence about their character ... 50

..If the D adduces character evidence, the P can rebut it ... 50

110 (2)... 50

110 (3)... 51

D1 is allowed to admit expert evidence about D2’s character ... 51

111 Evidence about character of co-accused ... 51

…and the hearsay and tendency rule do not apply (s111 (1) (a)) ... 51

The court must give leave for a cross-examination about character ... 51

112 Leave required to cross-examine about character of accused or co-accused ... 51

Privilege ... 51

Client Legal Privilege ... 51

Privilege attaches to confidential communication and confidential documents ... 51

Section 117 definitions ... 51

Client must object to the adduction of the CC or CD ... 51

118 - Legal advice ... 51

119 – Litigation ... 51

Court must advise that the right to object exists (s132) ... 51

Also to inspect documents (s133) and ... 51

Rule on admissibility (s134) ... 51

…Once informed, if no objection, privilege may be waived ... 51

…Because client may lose privilege if they consent or their conduct is “inconsistent” with [maintaining the privilege]. ... 51

122 (2) Loss of client legal privilege – consent and related matters ... 52

Knowing disclosure may constitute ‘inconsistent’ conduct ... 52

S122 (3) ... 52

Also Mann v Carnell (1999) 201 CLR 1: ... 52

…But check the factors in s122 (5) ... 52

Inconsistency looks at the client behaviour, not their intention ... 52

Council of the NSW Bar Association v Archer [2008] NSWCA 164 at [48]. ... 52

Mere reference to the fact that the client or party took into account legal advice is not inconsistent. Must be a direct ref to the contents of the privileged communication ... 52

Commissioner of Taxation v Rio Tinto (2006) 151 FCR 341 at [71]-[72]... 52

Mere fact that the advice was referred to not ‘inconsistency’ ... 52

‘Osland v Secretary to the Dept of Justice (2008) 249 ALR 1 at [46] & [48] ... 52

(14)

No privilege on communications to further fraud or misconduct – s125 ... 52

Abuse of power must be “deliberate” ... 52

Kang v Kwan [2001] NSWSC 698 at [37(10)]. ... 53

Privilege Against Self-incrimination – s 128 ... 53

A fundamental right ... 53

Reed v Howard 1995 - HCA ... 53

Witness can object on the ground that evidence incriminates them – s128 (1) ... 53

Evidence tends to prove that witness committed a criminal offence - s128(1) (a) ... 53

Evidence tends to prove that witness liable for civil penalty - s128(1) (b) ... 53

Court determines whether there are reasonable grounds for the objection ... 53

128 (2) The court must determine whether or not there are reasonable grounds for the objection. ... 53

Does not apply to evidence by a defendant about facts in issue – s128 (10) ... 53

**Refer to flowchart ... 53

Evidence cannot be used against the person once certificate is issued ... 53

128 (7)... 53

Other Privileges ... 53

S127 Religious confessions ... 53

127A Journalist privilege ... 53

130 Exclusion of evidence of matters of state ... 54

Note: can involve using information from police informants ... 54

131 Exclusion of evidence of settlement negotiations ... 54

Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) (2005) 214 ALR 621 at [36]. ... 54

…Except communications that relate to costs in settlement ... 54

S131(2)(h) ... 54

Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) (2005) 214 ALR 621 at [36] ... 54

Comments and Inferences ... 54

Comment on failure to give evidence by the Defendant ... 54

The prosecutor is generally prohibited from ‘commenting’ (directly or indirectly) on a D’s failure to give evidence – s20 ... 54

20 Comment on failure to give evidence... 54

The judge or another party may comment on a D’s failure to give evidence but not to infer that the D failed to give evidence because they are guilty – s20 (2) ... 54

S20 (2): ... 54

…And the same goes for commenting on a failure by a spouse to give evidence – s20 (3) and (4) ... 55

…And if a co-defendant comments on the guilt of the accused, the judge may make a comment on the co-defendant’s comment – s 20 (5) ... 55

(15)

A failure by the accused to explain... 55

In of itself proves says nothing ... 55

Windeyer J in Bridge v The Queen (1964) 118 CLR 600 at 615; quoted with approval in Weissensteiner v The Queen (1993) 178 CLR 217 at 227 ... 55

…But a failure to contradict logically increases the probability that a statement is true ... 55

Windeyer J in Bridge v The Queen (1964) 118 CLR 600 at 615; quoted with approval in Weissensteiner v The Queen (1993) 178 CLR 217 at 227 ... 55

…and therefore, in limited circumstances the jury may be invited to make a Jones v Dunkel inference .... 55

The rule in Jones v Dunkel (1959) 101 ... 56

…but it would rarely be reasomable in a criminal cases ... 56

RPS v The Queen (2000) 199 CLR 620 at 632-633. ... 56

Warning and duties to warn (a jury) ... 56

Unreliable evidence... 56

Judge’s duty to warn the jury about unreliable evidence including ... 56

s165 (1) includes about: ... 56

(a) Hearsay or admissions rules apply ... 56

(b) ID evidence ... 56

(c) reliability affected by age, ill health (whether physical or mental), injury etc ... 56

(d) evidence by a witness who might have been criminal involved ... 56

(e) evidence given by a prison informer. ... 56

(f) oral evidence of questioning by an IO of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant. ... 56

(g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. ... 56

…but list is not exhaustive – s165 (5) ... 56

…and the trial judge may dispense with the warning if there is good reason – s165 (3) ... 56

…Can’t give a warning just because it is children’s evidence – s165A (1) ... 56

…Unless there are factors other than the child’s age – s165A (2) ... 56

Contents of the warning in 165 (2) ... 57

When prosecution has been delayed ... 57

Judge must warn the jury If the D has suffered forensic disadvantage because of the delay – 165B ... 57

…unless there are good reasons not to warn ... 57

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so. ... 57

…if the warning is given, the judge can’t suggest that it would be dangerous to convict just because of the delay ... 57

(16)

Standard of Proof ... 57

Civil Proceedings ... 57

On the balance of probabilities Section 140(1) ... 57

140 Civil proceedings – standard of proof ... 57

Criminal proceedings ... 57

Beyond reasonable doubt Section 141(1) ... 57

Admissibility of evidence – standard of proof ... 58

Balance of probabilities for both criminal and civil proceedings ... 58

142 Admissibility of evidence – standard of proof ... 58

Proof is not required about common knowledge ... 58

144 Matters of common knowledge ... 58

Examples of common knowledge ... 58

- The Sydney Opera House is in Sydney ... 58

- Asbestos is dangerous ... 58

- The Darwin Entertainment Centre is on Mitchell St (general knowledge in the locality of Darwin only) 58 - The fact that the Chief Minister of the Northern Territory in 2021 is Michael Gunner. ... 58

- The amount of rain that fell at the Darwin Airport on a particular day as indicated in a Bureau of Meteorology rain chart. ... 58

Miscellaneous Provisions ... 58

A voir dire – a trial within a trial ... 58

S189 - The voir dire can be used to: ... 58

determine admissibility of evidence – s189 (a) ... 59

whether evidence can be used against a person or – s189 (b) ... 59

whether a witness is competent or compellable – s189 (c) ... 59

The jury must not be present if the evidence is an admission, improperly obtained evidence - S 189 (2) . 59 Otherwise, they would only be present at the court’s orders – s189 (4) ... 59

Rules of evidence can be waived ... 59

190 Waiver of rules of evidence if the parties consent (190 (1)) ... 59

…In proceedings, such consent is not effective unless the D: ... 59

has been advised to consent by his or her Australian legal practitioner or legal counsel (s 190(2)(a)); or ... 59

the court is satisfied that the defendant understands the consequences of giving consent (s 190(2)(b)). ... 59

In Civil proceedings… ... 59

(17)

Court Powers, Common Law and the UEA

S11 General powers of a court

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

26 Court's control over questioning of witness

The UEA is not a code – s9 (1)

S9 - Application of common law and equity

…Except in relation to admissibility of evidence and compellability of witnesses

“While common law principles of admissibility may assist in determination of

questions of relevance and discretionary exclusions, they are no longer binding legal rules”.

Odgers at [EA.Intro.120]

The court may give leave, permission or direction that it sees fit – 192 (1)

…but when making a decision about leave, permission or direction, the court must take into account certain things – s192 (2) (a) – (e)

…and failure to take 192 (2) factors into account may be grounds for appeal

Stanoevski v The Queen (2001) 202 CLR 115.

Advance Rulings and Findings

The court may make advance rulings and findings before the evidence is adduced

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about:

(18)

(a) the admissibility or use of evidence proposed to be adduced; or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or

(c) the giving of leave, permission or direction under section 192;

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

Competence and Compellability

Prosecutor has a duty to call relevant witnesses to present the “whole picture”

Rules of Professional Conduct (NT)

17.52 A prosecutor must call as part of the prosecution's case all witnesses:

(a) whose testimony is admissible and necessary for the presentation of the whole picture;

(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;

(c) whose testimony or statements were used in the course of any committal proceedings; and

(d) from whom statements have been obtained in the preparation or conduct of the prosecution's case;

…Except under circumstances contained in 17.52 (e) – (i) Conduct Rules

Rules of Professional Conduct (NT)

In particular, prosecution may not be obliged if the witness is “in the camp of the accused.”

S 17.52 (h) Conduct rules

Starting point: all witnesses are competence and compellable

12 Competence and compellability

Except as otherwise provided by this Act:

(a) every person is competent to give evidence; and

(b) a person who is competent to give evidence about a fact is compellable to give

that evidence.

(19)

Exception: Lack of Capacity – s13

…No capacity for one fact does not necessarily preclude capacity for other facts - S13 (2)

And someone without capacity to give sworn evidence may be able to give unsworn evidence - s13 (3)

Exception: Reduced Capacity (s14)

Exception: Defendants in criminal proceedings cannot be compelled (s17) Fundamentally can’t be compelled to give evidence. An absolute bar on the defendent being compelled by the prosecution to give evidence. Particularly pertinent when you have co- accused. NO APPLICATION TO CIVIL PROCEEDINGS.

Section 17(3) – associated defendant is not compellable.

Exception: Spouses and family in criminal proceedings (s18) Spouse, de facto, parent or child may object to giving evidence

…If harm outweighs desirability of evidence s18 (6)

Court will consider factors in s18 (7) in determining the balancing act

…unless the offence relates to a DV or similar offence – s19 Can be compelled in these circumstances, regardless of objection.

Examination in Chief

Reviving memory with documents

Witness not to use docs to aid their memory unless the court gives leave - s32

…When giving leave, court will consider factors in 32 (2)

…including if the witness can remember without the docs - 32 (2)(a)

…and if the doc created when the events were “fresh in the memory” – 32 (2) (b)

…Court must also consider factors in 192 (general conditions to give leave)