Chapter 1 - Introduction

Question 1

What is circumstantial evidence? (use in sentence or define)

Answer 1

[Insert] is circumstantial evidence because it is a fact, from the existence of which the court or jury, may infer the existence of a fact in issue.

Question 2

Types of circumstantial evidence (4 headings)

Answer 2

(1) Prospectant evidence - Can infer from the occurrence of an act, statement of mind, or state of affairs in the past that it existed at material time (i.e. continuance, course of business, habit, plan/motive, and knowledge/capacity).
(2) Concomitant evidence - Can infer from circumstances which existed contemporaneously with what is being considered by the court render allegations from probable (i.e opportunity (defendant near time/place of crime), res gestae).
(3) Retrospectant evidence - Can infer from the occurrence of an act, statement of mind, or state of affairs that is existed after the material time that they existed at that time (i.e. opposite of prospectant evidence).
(4) Other - doctrine of recent possession, finger prints, tracker dog.

Question 3

Civil - Explain the rule in Jones v Dunkle by using an example “…As [X] is an issue in dispute this means the party is…” -

Answer 3

As [X] is in dispute, this means the party is required to explain or contradict this by (1) giving evidence (2) calling witnesses (3) tendering documents or by (4) producing other material. The unexplained failure to do so permits the teir of fact to draw an inference the untendered evidence would not have helped the party who failed to tender it (Jones v Dunkle rule).

Question 3

Discuss ‘dock identification’

Answer 3

Dock Identification is where a witness gives evidence that the defendant is the person subject of the charge.

Evidence of identification which is limited to “in court” identification is particular unreliable and usual not sufficient to sustain a conviction.

Whilst admissible it may be excluded in the discretion of the court or the judge may issue a warning regarding it’s dangers.

Question 4

Civil - What are some ‘reasonable explanations’ for not calling a witness? (Jones v Dunkle)

Answer 4

(1) reasonable explanation for not compelling attendance of witness (illness, unavailability, loss of memory, or refusal to waive privilege);

(2) witness is hostile;

(3) not credit worthy; and

(4) calling witness would prejudice the witness in their own criminal matters.

Question 5

What is the Domician warning? (Hint ID evidence) what is the effect of no warning being given? …explain using an example “…the case against the defendant….”

Answer 5

The case against the defendant depends to a significant degree on the
correctness of identification evidence of the defendant, which the
defendant alleges to be mistaken.

The judge must warn the jury of the dangers of convicting on identification evidence and draw the juries attention to the evidence supporting, and the weakness of, the identification (Dominican warning)

The failure to warn or an inadequate direction my result in a miscarriage of justice.

Question 6

What are some of the dangers with ID evidence re reliability? (list 5)

Answer 6

(1) Conditions of observations: fleeting glimpse, lighting, obstructed, distance.
(2) Defective memory: Long interval between when observation is made and witness tells police
(3) Recognition: Similarity of a person known to witness is on obstacle for recognition of faces
(4) ID by police methods (i.e. photoboards) - errors in police procedures
(5) Motive of witness to ID: Revenge or scapegoat

Question 7

What are the types of identification evidence?

Answer 7

Visual, sound (voice, coughing, breathing), touch or by smell.

Question 8

What are the means of proof? (three)

Answer 8

(1) Testimony (direct evidence (i.e. oral evidence))
(2) Admissible Hearsay; and
(3) Things or real evidence (material objects, demeanour or conduct of witness, views, demonstrations, and documents, charts).

Question 9

What is the best evidence rule (documents)?Does it apply in CTH jurisdiction?

Answer 9

The rule that the content of a document must be proved by the production of the original unless its absence can be explained.

Example: Original birth certificate document is primary evidence and a copy is secondary evidence.

CTH s51 Original document rule aka best evidence rule has been abolished

Question 10

General rule of admissibility?

Answer 10

All evidence which is relevant to an issue before the court is admissible subject to exceptions (I.e. Hearsay, opinion, character evidence ect)

Question 11

Explain the ‘Best Evidence Rule’ in a scenario…“If X wishes to rely upon [the document]…”

Answer 11

If X wishes to rely upon [the document] the original must be produced because it is primary evidence of it’s contents (best evidence rule) unless it’s absences can be explained.

Question 12

Finish the sentence: The expression relevance refers to…

Answer 12

The expression relevance refers to the relationship between evidence which is tendered and the issues being tired.

Question 13

What is the threshold for evidence to be relevant? (CTH)

Answer 13

Threshold for relevance is low. For evidence to be relevant its only required that the evidence if it were accepted could rationally effect (directly or indirectly) the assessment of a fact in issue (s55). If evidence is irrelevant it is not admissible (s56).

S55-56 EAC

Question 14

What is the relationship between weight and admissibility?

Answer 14

Admissibility is a question of law for the judge, whereas weight is a question of fact for the jury.

Question 15

When does the CTH Evidence Act Apply?

Answer 15

s4-5 Applies to all federal court proceedings and matters that apply to all Australian courts.

Question 16

At an hearing an opponent asks a question which is objectionable. What should counsel do and why is it important to object?

Answer 16

Counsel should object to the question to protect the client’s interests. The question is objectionable because [INSERT]. If the question is not withdrawn by questioner, counsel should obtain a judicial ruling. The failure to object may create issues on appeal as its suggests the trial counsel’s view was there there was no prejudice to a fair trial.

If the question is answered before the objection is successfully made and an answer is given should make an application to strike answer out or disregard.

Question 17

All relevant evidence is admissible subject to exceptions which include…(4 examples)

Answer 17

Hearsay, opinion, character, and prior conduct.

Question 18

Finish the statement: If a hearsay statement is admitted without of objection the fact it is a hearsay statement is relevant only…

Answer 18

If a hearsay statement is admitted without of objection the fact it is a hearsay statement is relevant only on the question of weight, that is, the statement is in evidence for all purposes.