Trial Process - The Evidence Act 1995 NSW Voir Dire
• Preliminary step – “a trial within a trial”. Whether an admission should be admitted into evidence, whether a witness should be able to revive their memory, whether a witness is unfavourable, whether a witness is an expert etc. So jury’s view not tainted
s189 – VOIR DIRE
S142 – Civil standard of proof in Voir Dire
S11 – General Powers of the Court (also see s26)
(1) The power of the court to control proceedings is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. (overarching powers of the court to control a fair trial)
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
• Mooney v James [1948] VLR 22
The court shall have all discretionary powers necessary to carry out duty to ensure evidence is adduced properly to allow the parties to present their case fairly.
Discretion of Court to Give Leave S192 LEAVE - 5 factors
Adducing evidence: Competence and Compellability – Evidence Act s12 EXCEPTION TO COMPETENCE - Defendants in CRIMINAL Proceedings EXCEPTION TO COMPETENCE - Compellability of Spouses and others in CRIMINAL Proceedings
Calling of Witnesses
S 20 - Failure to Call Witnesses in Criminal Cases – cannot be used to infer guilt
PROSECUTION – Duty to call witnesses Examination of Witnesses
Control of the Court Examination in Chief
S37 – Leading Questions
S32 - Attempts to Revive Memory in Court (not police)
S33 - Police officers can use document in court to revive memory S38 - Unfavorable Witnesses – s38
Cross-Examination
S 42 - Leading Questions allowed IN CROSS EXAM S41 - Improper Questions (discretion)
S46 - Leave to recall witnesses if you have failed to put evidence to them.
S43 - Prior Inconsistent Statements of Witnesses Re-Examination
S39 - Limits on Re-examination – ONLY on matters arising in crossexam
Judicial Warnings STATUTORY WARNINGS:
S164 - Corroboration Requirements Abolished S 165 - Unreliability of Evidence
Unreliable Evidence Through Delay
165B – Exclusive basis for warnings of delay Residual Common Law Powers to Issue Warnings:
Documentary Evidence Authentication
National Australia Bank v Rusu (1999) 47 NSWLR 309 Real Evidence
Evidence Act 1995 (NSW) Part 2.3 “Other Evidence”
Adducing à Admissibility
Relevance; Exclusion of Admissible Evidence - Part 3 Evidence Act
Facts in issue:
Evidence ‘DIRECTLY’ relevant to a fact in issue:
Evidence ‘INDIRECTLY’ relevant to a fact in issue:
Relevance at Common Law - BEFORE EA, test was logical connection Relevance – for more than one purpose
COURT’S DISCRETION to EXCLUDE Part 3.11 Evidence Act S135 General discretion to exclude evidence:
S 136 General discretion to limit use of evidence
S 137 Exclusion of prejudicial evidence in CRIMINAL proceedings 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.
Note: outweighed, NOT substantially outweighed. Refer to s135 for meanings.
Eg of unfairly prejudicial evidence = gruesome photos of crime victims.
Generally low probative value of who did it. Inspire emotions. Usually excluded.
• R v Cook [2004] NSWCCA 52
Adduced evidence of a previous restraining order. Appealed and overturned.
• R v Lisoff [1999] NSWCCA 364
DNA evidence has probative value but unfairly prejudicial? Invoke a irrational response? This is a question of fact and nothing
unacceptable.
• R v Shamouil (2006) 66 NSWLR 228
Do you attribute credibility of witness to probative value?
No, take evidence on its face value. Affirmed in IMM.
• IMM v The Queen (2016) 90 ALJR 529
Agreed with Shamouil. Credibility or reliability of the evidence is separate to probative value. These are matters for the jury to be convinced of.
Judge may proceed on the basis that the evidence is credible and reliable unless it is so clearly unreliable to be fanciful, preposterous to be excluded.
S 139 Cautioning of Persons
HEARSAY
S59 - THE HEARSAY RULE - Exclusion of Hearsay Evidence ‘Representation’ -
‘Previous Representation’ – Dictionary of EA.
Requirement of INTENTION - s 59 IS IT HEARSAY? PROCESS
1. What is the previous representation? The holden went through the red light
2. Who is the maker of the representation? How many steps removed is maker from person giving evidence in court? Annie giving evidence– no steps removed. Bob is one person removed if he heard Annie
3. What did the maker of the representation (reasonably) intend to assert by the representation? Assumption that maker intended to assert exactly what they said. Objectively assess. Unintended implied assertions are admissible (59(2A)). Annie’s words were an express assertion that she reasonably intended to assert.
4. For what purpose is the previous representation relevant?
If it is relevant for a non-hearsay purpose, the evidence is admissible If it is relevant for a hearsay purpose, the evidence is inadmissible unless an exception applies.
Eg to prove holden went through red light, then hearsay evidence and inadmissible for that purpose.
5. Now look at exceptions (in later weeks)
Hearsay Exception Process
If the evidence is hearsay, then can court circumvent the rule?
1. Does one of the facilitative exceptions apply? Eg business records, tags/labels
2. Does s 66A apply? Contemporaneous mental state exception 3. If not, consider the first hand hearsay exception. In table.
Did maker have first hand knowledge of the asserted facts?
Evidence will be relevant
Are they civil or criminal proceedings?
Is the maker available to give evidence? Reasonably practical?
4. Is there more than one purpose for which evidence of the representation is being led? S60
Is it relevant for non-hearsay purpose?
Need to go through credibility, tendency, opinion loop first After admission based on non-hearsay purpose à non-hearsay purpose
ADMISSIONS – EVIDENCE ACT; PART 3.4
NO adverse inference drawn from SILENCE to official questioning - s 89 BUT…
Evidence Act S89A:
OPINION EVIDENCE
EXCEPTION - Lay Opinion s 78
S78A Exception: existence of Ab traditional laws and customs Expert Opinion: s79
Conflicting Expert Evidence
TENDENCY AND COINCIDENCE EVIDENCE - Evidence Act Part 3.6
