Evidence exam questions

Question 1

What are the types of evidence; means of proof?

Answer 1

1. Testimony
2. Documentary evidence
3. Real evidence

Question 2

What is testimony?

Answer 2

Is the evidence of a W in crt, can be:

1. ORIGINAL: evidence of a fact of which the W has personal knowledge, having **perceived it **with one of the five senses (taste, touch, small, hearing and sight).

Original evidence can include evidence of the fact that an assertion was made — evidence tendered without reference to the truth of anything alleged in the assertion. i.e., it is crucially important to have regard to the purpose for which the evidence is tendered to the crt; otherwise might be,

2. HEARSAY: when W relaying what somebody else said outside crt, and relied upon as proof of truth of what said.

Question 3

What is original evidence?

Answer 3

Evidence is said to be original when a W narrates another person’s statement for some purpose other than that of inducing the court to accept it as true.

They include:
1. Statements of fact in issue
2. Statements as facts relevant to the issue and;
3. Prior statements of a witness which are consistent or inconsistent with the witness’s testimony and hence go to the witness’s credit.

Question 4

What is documentary evidence?

Answer 4

A document may be put into evidence either as a chattel (a physical object) or a statement.

If as a chattel - then real evidence.

If statement, usually constitutes testimony evidence. It will generally be supported by testimonial evidence from a witness, or else it will be hearsay.

When a document is produced and identified by a witness, it is not incorporated in the testimony, nor are its contents automatically tendered as proof of anything they assert.

Cth: if party intends to tender an plans, photos or model, must give other parties opportunity to inspect and agree admission without proof, 7 days b4 hearing: r30.26 FCR.

Question 5

What is the definition of a document in QEA? Where can it be found?

Answer 5

QEA defines a document in Sch 3 as including, in addition to a document in writing – any part of doc, book, map plan, graph, photo, label, disc/tape/soundtrack, film or any other record of info.

Question 6

Where do I find the statutory (QLD) definition of ‘original document’?

Answer 6

s104 QEA (Part 7 – Reproduction of documents)

Question 7

What Chapter, Part and sections deal with documentary evidence in CEA?

Answer 7

Chapter 2 – Adducing evidence, Part 2.2, s48 Proof of contents of documents

Notes:
Also includes:
s50 Proof of voluminous material or complex documents (by adducing contents of 2 or more in the form of a summary);

s51 abolishes the original evidence rule.

Question 8

What is the general rule when it comes to proving the contents of a document in court?

Answer 8

The general rule is that the party seeking to rely on the contents of a document must tender the original document (Best evidence rule), however there are exceptions, does not apply where:
CL:
1. reliance is placed on doc only for appearance of identification (label on jar id jar not contents);
2. (civil) opponent fails to produce if asked under: r227 UCPR (notice to produce);
3. original is lost or destroyed (if not fraudulently destoyed);
4. strangers lawful refusal to produce doc;
5. production of original impossible;
6. admission by other party of authenticity of secondary evidence (copy).

Statutory exceptions:
QLD:
Copies: s116 QEA: copy of original by machine proved, copy is admissible; and
s119 QEA: where a copy is admissible under s116, no need to have given notice to produce.

Book of account: s84 QEA: copy of entry into book of account admissible (proved if of a financial nature, and one of the ordinary books of account and entry made in usual way).

FCT:
Original document rule abolished by s51 CEA.

s48 CEA: can tender a copy (where produced by photocopier etc), also under this rule can adduce contents of doc by tendering, affidavit (per ss170-173 CEA) with evidence of content; transcript of recording; summary/ extract of business record; authorised public document.

Person against whom doc tendered, can request production so can examine/copy: ss166-168 CEA, if other party doesn’t comply, crt may order the evidence not be admitted: s169 CEA.

**s50(1) CEA: **if voluminous or complex, crt can direct party to adduce evidence of 2 or more docs in the form of a summary.

(The exceptions are the subject of this topic)

Question 9

What do you do if a stranger is in possession of the original document?

Answer 9

Serve the stranger with a subpoena. See Chap 11, Part 4 UCPR
r420 - serve subpoena to produce on stranger

Question 10

What is a subpoena and what kinds of subpoena are there?

Answer 10

A subpoena procures a witness’s attendance at the trial. There are two types of subpoena;

1. To compel a witness to give oral evidence; and
2. A subpoena for the production of documents

Question 11

How is a subpoena issued?

Answer 11

The registrar seals (issues) a subpoena at a parties request.

Question 12

When would a subpoena under the UCPR be dismissed?

Answer 12

Under UCPR, r416 the court may make an order to set aside all or part of a subpoena

Question 13

What is real evidence?

Answer 13

Anything other than testimony, admissible hearsay, or a document, the contents of which are offered as testimonial evidence, examined by the tribunal as means of proof.

Real evidence is typically a thing. They require crt to reach conclusion based on own perception.

Can include appearance of persons, objects and scenes - i.e., a person’s physical characteristics.

Can include views of a scene, object, experiment, reconstruction or demonstration. If outside crt room, or in absence of consent, for demonstrations, will not be part of the evidence but merely something that enables crt to better understand the evidence.

Will often require testimony identifying it as the object in/relevant to the issue, known as “authentication”.

Question 14

Define relevance.#

Answer 14

Evidence is relevant it if could rationally affect (directly or indirect) the assessment of probability of the existence of a fact in issue (Goldsmith; s55 CEA)

e.g. makes a FII more or less likely. If not relevant – not admissible (s56/Goldsmith).

Question 15

When is evidence not relevant?

Answer 15

Evidence will lack relevance if it is equivocal in terms of what it tends to show – that is – it can be taken two ways.

Question 16

Distinguish between relevance, admissibility and weight #

Answer 16

1. The general rule is that all evidence that is relevant is admissible subject to common law exceptions, statutory exceptions and judicial discretion.
2. Admissibility is question of law for the judge.
3. The weight of evidence is the degree of reliance the court will place on it. It is a **question of fact for the for the finder of fact **(judge/jury) to assess (Pell).
4. Admissibility of relevant evidence is found in s56 CEA; Goldsmith

Question 17

What is the weight provision in QEA to statements rendered admissible in evidence?#

Answer 17

Section 102 – Weight to be attached to evidence – regard to be had to the circumstances from which inferences can reasonably be drawn as the accuracy of the statement (e.g. was it made/recorded contemporaneously or was there any incentive to conceal or misrepresent).

NB: Evidence admitted under s84, s92, s93 etc, which are exceptions to the rule against hearsay, the court will weigh that evidence according to factors in s102.

Question 18

What are the facts in issue; civil and criminal?

Answer 18

Are the facts that need to be established to prove COA, offence, or defence.

Civil; pleadings (cause of action)

Criminal; elements of offence

Whenever you speak about facts in issue or relevance cite Goldsmith v Sandilands.

Question 19

What are collateral facts?#

Answer 19

Collateral facts are:
(a) those affecting credibility of a witness; they are facts not relevant to the facts in issue but relevant to credibility of witness; can XX on credit subject to s20 and 21 QEA and s103 CEA;
(b) those affecting admissibility certain evidence: eg cogency of evidence - accuracy of device for measuring speed.

Credibility is a collateral fact and you can cross examine on credibility under :ss20/21 QEA; s103 CEA

Question 20

What is direct evidence?#

Answer 20

Direct evidence is evidence that leads directly to the proof of a fact in issue.

Question 21

What is indirect evidence?

Answer 21

Any fact from which the finder of fact may infer the existence of a fact in issue. (Circumstantial evidence)

Whether or not it is admissible depends on how relevant it is to a FII.

Question 22

What is circumstantial evidence? What is its effect?

Answer 22

Circumstantial evidence is indirect evidence. Eg DNA, fingerprints

Expanded

Any item of evidence that is not direct evidence of a fact in issue, but which points towards that fact, must be regarded as circumstantial (or indirect evidence). Whether or not it is admissible comes down to relevance. DNA, finger prints, handwriting etc are all indirect evidence.

Question 23

What is ID evidence?

Answer 23

Most common form of ID is that id a person, handwriting or objects (through one of the 5 senses).

ID by sound of a person’s voice is admissible if the W is already familiar with it, or if the voice is distinctive.

Question 24

How do you prove ID evidence?

Answer 24

1. ID parade, if properly held, best way, but Acc doesn’t have to take pt: Alexander/ s114 CEA; if not,
2. ID made by photos: Should only be done if ID parade refused/exceptional circ: Alexander; s115 CEA;

If ID evidence used: need to seek Domican Warning /s116 CEA direction re dangers of acting upon ID evidence.

Also: if danger of unfair prejudice outweighs the probative value must be excluded at Cth: s137 CEA (crim)

Question 25

What is a Domican warning?

Answer 25

Where identification evidence represents any significant part of the proof of guilt of an offence, the judge must warn the jury of the dangers of convicting on such evidence where its reliability has been challenged.

Question 26

What is the rule in the QLD evidence Act for fact finding on sentencing?#

Answer 26

s132C QEA – judge may determine on the balance of probabilities

Question 27

In a civil proceedings, where is the standard of proof found in the CEA and what is the standard?#

Answer 27

s140 – on the balance of probabilities – Briginshaw principle in s140(2) CEA

Briginshaw: crt can take into account nature/seriousness of the allegation in issue or gravity of consequences of a finding when considering probative value of evidence.

Question 28

What is the Briginshaw standard? #

Answer 28

When, in a civil matter, the court must determine on the balance of probabilities, the **level of satisfaction of the evidence **can take into account:

(a) the seriousness of the allegation;

(b) the inherent unlikeliness of that event (behaviour); and

(c) the gravity and consequences flowing from the finding.

Question 29

In criminal proceedings, where is the standard of proof found in the CEA and what is the standard?#

Answer 29

s141 CEA – beyond reasonable doubt for P; BOP for accused (e.g. defence)

Question 30

Where do I find the law on the standard of proof for admissibility of evidence in the CEA? What is the evidentiary standard for the admissibility of evidence?#

Answer 30

s142 CEA – on the balance of probabilities – Briginshaw principle in s142(2)

Question 31

Explain the legal burden – keyword: obligation#

Answer 31

The maxim is that “he/she who asserts must prove”.

In civil cases, the legal burden is the obligation of the party of proving a fact in issue.

In criminal cases it is the burden to prove the elements of the offence.

Question 32

Explain the evidentiary burden?#

Answer 32

The obligation to show there is sufficient evidence to raise an issue as to the existence or not of a fact in issue; with due regard given to the standard (Braysich)

Question 33

How are the legal and evidentiary burdens related?

Answer 33

The two burdens exist in connection with every issue in a case and will be allocated between the parties in a sequential pattern.

NB: Legal and evidential burdens exist in connection with every issue in a case and will be allocated between the parties in a sequential pattern. Eg. B’s obligation to prove repayment of the debt does not arise until A has begun to prove the existence of the debt in the first place. That is, until A has at least discharged the evidentiary burden on the issue of the very existence of the debt.

Question 34

Which party bears the evidential burden?#

Answer 34

The general rule is that the party bearing the legal burden also bears the evidential burden. Unless a statutory defence is raised which ‘shifts’ the burden to the party relying on the defence eg. insanity which they need only discharge on the balance of probabilities.

Question 35

When does the burden shift?#

Answer 35

The burden does not technically shift, however, if a proponent appears to discharge the legal burden on an issue, then the opponent risks losing if they do not adduce evidence; in this case it is the evidential burden that shifts.

The legal burden may fall to the defendant in a criminal matter where a defence is raised. The defendant must adduce evidence and meet the burden on the balance of probabilities. Eg defence of insanity

Question 36

What is the test that an accused must satisfy to discharge the evidential burden?#

Answer 36

That there is enough evidence, taken at its highest, that would lead a jury, properly instructed to have a reasonable doubt that each of the elements of the defence have been negated.

Question 37

What is the tactical burden? (Think tactical – counterattack – at the fact level – inferences)#

Answer 37

The tactical burden is the obligation to produce counter-evidence when a party has proved a relevant fact to prevent the court drawing inferences as to the fact in issue (Stone and Wells).

The tactical burden is not a matter of law but of psychology.

Question 38

What is a presumption?#

Answer 38

A conclusion that a fact (a presumed fact) exists which may or must be drawn if some other fact (basic fact) is proved or admitted. If this then that.

Question 39

What is the effect of a presumption?#

Answer 39

A presumption dispenses from the normal presentation of evidence. As do formal admissions and judicial notice.

Question 40

What is the ultimate burden of the Crown in a criminal matter?#

Answer 40

The Crown bears the ultimate burden of proving the guilt of an accused person ‘beyond reasonable doubt’ (Woolmington v DPP).

Question 41

What does the standard, ‘beyond reasonable doubt’ mean?#

Answer 41

The court has long maintained that in instructing a jury the standard of beyond reasonable doubt should not be further defined. It means what it says.

Expanded;

Judges should not elaborate on the meaning of beyond reasonable doubt. It could lead to misdirection. Whether a doubt is reasonable is for the jury to say.

Question 42

What does it mean to meet the evidential standard?#

Answer 42

The evidential standard will be satisfied if the party carrying the burden can adduce sufficient evidence on the balance of probabilities to raise an issue as to the existence or non-existence of a fact in issue.

In criminal cases, the evidentiary burden is, getting past the judge; to show there is evidence for the matter to be referred to a jury.

Expanded

Satisfaction on the balance of probabilities calls for the court to feel an actual persuasion of the occurrence or existence of the matter in issue.

**Degrees of proof within each standard **– the flexibility of the civil standard of proof suffices to ensure that the court will require a high degree of probability which is appropriate to what is at stake – eg if you plead fraud in a civil case, the court will expect to be satisfied there was fraud to a high bar.

Question 43

Does the standard apply to each piece of evidence?

Answer 43

No, it is not necessary that the jury must be satisfied beyond reasonable doubt of the existence of each and every evidentiary fact, for different members of the jury may be convinced beyond reasonable doubt of the guilt of the accused by their acceptance of the existence of different facts.

It is wrong for the jury to consider each item of evidence separately and eliminate it from consideration unless satisfied beyond reasonable doubt.

Question 44

In instances where the defendant bears the legal burden, to what standard must they adduce evidence?#

Answer 44

The burden on the accused who carries the legal burden is satisfied on the balance of probabilities; it is less than that required by the prosecution.

Question 45

What is the standard of proof in disciplinary proceedings before a tribunal?#

Answer 45

The finder of fact must reach their conclusion on the basis of reasonable satisfaction.

Question 46

Who has the onus in a voir dire for an argument over confessional evidence?#

Answer 46

The general rule is that the defendant carries the onus of proving that evidence, which is otherwise admissible, should be excluded on a voir dire. However, prosecution carries the onus if it seeks to prove that a confession was obtained lawfully (voluntarily).

Question 47

What is the section of the CEA deals with hearing voir dires?#

Answer 47

s189 CEA – Miscellaneous

Question 48

What section of the QEA deals with the admission of similar fact evidence and the probative versus possible prejudicial effect?#

Answer 48

s132A QEA– Part 8 Miscellaneous

Says that in a crim proceeding SFE, where probative value outweighs potentially prejudicial effect, must not be ruled inadmissible on the ground that may be as a result of collusion/suggestion - matter of weight.

BUT note Pfennig test

Question 49

What is tendency and coincidence, or SFE? What are the rules?

Answer 49

QLD:
Propensity and similar fact evidence is evidence of the accused’s similar conduct, may be used to prove elements of an offence as it goes to show that the accused is more likely than anyone else to have committed the offence. BUT:

Pfenning: the evidence will not be admitted unless there is no rational view of the evidence consistent with the innocence of the accused.

Cth:
s97 CEA: tendency rule
s98 CEA: coincidence rule.

Question 50

What is the Pfennig test?

Answer 50

The Pfenning case concerns the admissibility of propensity evidence (relevant to the category of similar fact evidence), the test is:

Propensity evidence will be admissible only if it’s probative value exceeds its prejudicial effect, i.e. that there is no reasonable view of the evidence consistent with the innocence of the accused.

A fact which tends to indirectly prove or disprove the existence of a fact in issue is admissible if it’s probative value outweighs the potential prejudicial effect of the evidence.

Question 51

In a criminal trial what discretion does the judge have to reject evidence?#

Answer 51

CTH:
s135 CEA - general discretion to exclude if unfairly prejudicial, misleading etc;
s136 CEA - discretion to limit use;
s137 CEA - crim only - crt must exclude evidence if probative value outweighed by unfair prejudice.
s138 CEA: discretion to exclude improperly/illegally obtained evidence.

QLD:
s130 QEA: discretion to exclude if unfair to acc to admit.

Question 52

When can a person give evidence? Are there exceptions?

Answer 52

Witness is assumed competent and compellable: ss6-9 QEA/s12 CEA, unless lack capacity: s12 CEA or is accused: s8 QEA/ s17 CEA.

Under s8(1) QEA/s17 CEA an accused person, whether they are charged solely or jointly, is deemed competent but NOT COMPELLABLE to testify for themselves, and NOT COMPETENT to testify for P.

A co-accused if jointly tried, is NOT COMPELLABLE: s8 QEA/ s17 CEA.

No

Question 53

What is the purpose of examination in chief?#

Answer 53

To establish the facts which support the party’s theory of the case.

i.e. for Party A to establish the facts which supports Part A’s theory of the case by obtaining evidence of each of their own witnesses.

Question 54

What are the three objectives of cross-examination#

Answer 54

(a) Obtain evidence favourable to your case (by establishing valuable facts in favour of case (XX as to ISSUES);
(b) Cast doubt on the accuracy of their evidence (by reducing credibility of EIC (XX as to CREDIT); and
(c) Advancing your case.

NOTE:
* Generally all W that give EIC liable to XX.
* If a W who has given EIC (or via a written statement) is unable to be XX, evidence may still be admissible, but weight given to the evidence may be diminished.
* XX can widen admissibility - e.g. XX on parts of doc not used to refresh memory, may let the whole document in; allegation of recent invention may let in a PCS.

Question 55

What is the purpose of re-examination?#

Answer 55

IMPORTANT: Questions in re-examination are limited to those issues raised in cross examination.

New matters can only be introduced with leave of the judge.

Cth: see s 39 CEA.
QLD: CL rules

To allow the witness to provide context to answers given in cross.

It is to allow the witness to explain any matters that arose out of cross. It is restricted to matters raised in cross-examination, and there should be a need to re-examine on it.

Questions may not be put, any more than they may be put in chief:

1. No leading questions:
2. PCS can only be put to the W if rendered admissible by the terms of the XX, or as statements in documents made admissible in civil proceedings by statute, or to refresh memory;
3. may ask W about and tender whole PIS to show wording not generally inconsistent.

Question 56

What is the Cth law governing re-examination?#

Answer 56

Under s39 of CEA – Limits on re-examination; questions in re-examination must relate to matters arise from cross-examination unless leave of the court permits other questions.

s46 CEA - deals with situation where in breach of Brown v Dunn rule a matter is raised on which W not XX, but could have given evidence, leave may be granted to re-call that W for limited purpose of giving evidence on that issue.

Question 57

What is evidence in rebuttal? When is it allowed?

Answer 57

No party is normally permitted to adduce fresh evidence after their case is closed - it may not ‘split its case’. Rule is one of fairness.

CRIMINAL: general principle P must present its case completely before A is called upon for defence: Shaw

Crt has a discretion to allow evidence in rebuttal by P but only if the circumstances are very special or exceptional and, generally not if the occasion for calling the further evidence ought reasonably to have been foreseen.

Power to allow further evidence to be called by the P after it has closed its case is exercised very sparingly, ie:
1. DISCRETIONARY;
2. in EXCEPTIONAL circumstances; or
3. in SPECIAL CASES (e.g. unforeseen defence/elements of defence raised);
4. NOT REASONABLY FOREEABLE (i.e. last-minute alibis);
5. in relation to CREDIT issues, e.g. PIS;
6. where formal, TECHNICAL or non-contentious;
7. evidence was U/A at usual time;
8. evidence was not relevant when leading EIC;
9. no rule against evidence being allowed after summing up;
10. should allow if before defence case;
11. should allow if jury request and A consents;
12. if A put evidence of own good CHARACTER, P entitled to call evidence to rebut.

CIVIL: general rule similar to crim. Is DISCRETIONARY, may consider if in interest of justice, e.g.:
* usually confined to rebutting D case;
* UNFORSEEABILITY: extent P surprised is relevant;
* where re issue on which D has burden of proof;
* fresh evidence; and
* where not prejudice to other party.

Question 58

What is a leading question?#

Answer 58

A question that **suggests the answers or assumes the existence of a fact not yet established.

Question 59

What section of CEA refers to leadings question?#

Answer 59

s37 CEA - re when can be used in EIC; leave of the court, or intro, no objection, re matter not in dispute, expert.; AND

s42 CEA: XX allowed unless disallowable ques.

Question 60

Two examples of a leading question?#

Answer 60

You were with the accused on the night of the robbery and you helped him get away didn’t you?

When did you stop beating your wife?

Question 61

When can you ask a leading question in examination in chief (or re-examination)?#

Answer 61

The general rule is that leading questions are banned in EIC and REX because evidence given should be from the witness’s own recollection and not led by Counsel: (s37 CEA, unless crt gives leave or about the below).

There are four exceptions:

1. When it is introductory in nature; or
2. No objection, if each other party is legally represented;
3. It relates to undisputed part of the testimony such as their name, address etc; or
4. experts may be lead through their report; or
5. police officers (s33 CEA).

the purpose is to save time.

Question 62

Can a leading question be asked in cross-examination?#

Answer 62

Yes, see s42 CEA: but crt has discretion to disallow them.

The court has the power to control leading questions including the discretion (QLD)/ or duty (CTH) to disallow a question or direct a witness not to answer (no need for a party to object to ques, Crt can intervene under these sections re improper quest on own to protect W): also

NOTES:
s20 QEA/ss102-103 CEA: crt can limit questions on credit if not materially impair confidence

s21 QEA: crt may disallow questions, or inform W they don’t have to answer, if crt considers improper ques, i.e. uses inappropriate language, or is misleading, confusing, annoying, harassing or intimidating, etc;

s41 CEA - disallowable questions (similar terms to s21 QEA, but duty)

Can question re PIS, but hearsay prohibited the same as in-chief.

Crt has a discretion to re-call a W for further XX.

Question 63

Under Qld law, what is the meaning of an improper question? What constitutes an improper question and what is the law against improper questions. #

(Hint: work backwards)

Answer 63

s21(4) QEA

Provides the meaning of an improper question – a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive and repetitive.

In deciding whether a question is improper, s21(2) QEA provides the court may take into account any impairment of the witness or other things such as age, education etc.

S21(1) provides that the court MAY disallow an improper question in cross-examination

• QLD: discretion on the court to disallow.

Question 64

Under Cth what constitutes an improper question and what is the law against improper questions?

Answer 64

s41 CEA - improper questions (similar terms to s21 QEA)

Refers to ‘disallowable questions’ as – misleading or confusing, confusing, annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, belittling or insulting, based solely on stereotype: s41(1) CEA.

In deciding whether a question is ‘disallowable’, s41(2) CEA provides the court may take into account any relevant condition or characteristic, incl. age, education language and understanding etc, nature if proceeding, incl offence in crim trial.

Not disallowable merely because challenges the truthfulness or requires W to discuss distasteful or private matters: r41(3) CEA

s41(1)(4) provides that the court MUST disallow a disallowable question in cross-examination, whether objection raised or not.

• Cth - duty on the crt to disallow.

Question 65

What is credibility evidence? What is it admissible for?

Answer 65

Credibility evidence about a witness is not admissible (s102 CEA).

Credibility evidence is relevant to the credibility of the witness (s101A CEA/s20 QEA); that is the reliability or assessment of believability of the witness. It is not relevant to a fact in issue.

BUT - cross-examination is an exception; most notably s103 CEA and s20 QEA if will impair confidence.

Question 66

What is the rule regarding questions as to credit in cross examination in the Queensland court?

Answer 66

S20(2) QEA in this section, a question as to credit for a witness means a question that is not relevant to the proceeding except that an admission of the questions truth may affect the witness’s credit by injuring the witness’s character.

S20(1) provides that the court may disallow a question as to credit put to a witness in XX if the court considers an admission of the questions truth would not materially impair confidence in the reliability of the witness’s evidence.

Question 67

What is the finality rule?

Answer 67

Answers given by a W in XX that relate solely to a collateral fact to be treated as final.

Collateral facts are those that are not FII. A W credit is collateral evidence. General rule at CL is that the first answer a W gives to a question that deals just with credit/collateral facts is the final answer.

‘Credit’ is different to ‘credibility’, e.g. credit = bribed; credibility = XX to show was around the corner and couldn’t see incidence.

XXmer will generally not able to pursue by for eg calling other W to rebut, but there are 5 exceptions:

1. PIS;
2. Criminal history: ss15A & 16 QEA;
3. ** Bias**: where ‘motive for giving false testimony’;
4. W reputation for lying: (rare in practice);
5. Physical or mental incapacity: (e.g. eye site), may be more properly ‘credibility’, but sometimes can go to credit.

NB: s106 CEA sets similar out as exceptions to the credibility rule.

Question 68

What is a prior consistent statement? #
It is a matter of credibility

Answer 68

At common law, a statement made prior to trial, that enhances or reinstates the credit of the witness.

Question 69

What is the ban on prior consistent statements? Why is there a ban on prior consistent statements? Are there any exceptions in Qld or Cth law?

Answer 69

A witness cannot be asked if they always maintained the version of events which they are now recounting in their oral testimony because it is self-serving. It can’t be used to enhance credit.

Provide two exceptions to the rule (against prior consistent statement):
1. Re-butting allegation of fabrication/recent invention; and
2. Sexual assault cases

Statutory exceptions found: ss66,108(3) CEA; s101(1)(b) QEA

Prior consistent statements may be tendered as original evidence, not as truth of contents.

Question 70

Are prior consistent statements allowed in evidence in chief?#

Answer 70

No, there is a general common law ban on prior consistent statements in chief, but note:

exceptions:

1. complaints of sexual assault;
2. **s66 CEA **permits in crim cases evidence of previous representation by a W (to be given by the W or another person who saw/heard rep of the W), if the W available to give evidence, and where asserted fact was fresh in W mind at time of making prev rep, but note restrictions on application to P evidence, unless it’s re ID of person, place or thing. if allowed under s66, s60 CEA will allow it to be admitted as evidence of the truth of what was said unless its use is limited under s136 CEA);
3. s101(1)(b) QEA; and
4. s108(3) CEA allows for the admissibility of prior consistent statements to rebut an allegation of recent invention or fabrication. May arise in EIC where previous W gives evidence this W fabricated evidence.

Question 71

What is recent invention?#

Answer 71

Where put to W that version of events just given is a recent invention, and by implication, untrue.

To give rise to this exception, must be a specific allegation of recent invention, not mere references to inconsistent statements.

s108(3) CEA says credibility rule does not apply to evidence of a prior consistent statement of W if it is or will be suggested (expressly or by implication) that evidence given by the W has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion and the court gives leave to adduce the evidence. If admitted under this section statement is admissible to prove the truth of the facts asserted by reason of s 60 CEA - but note s136 discretion open to HH re use.

Question 72

What is a prior inconsistent statement? Putting a prior inconsistent statement to a witness in cross is a means of undermining their credibility.

Answer 72

A prior inconsistent statement is any statement said to have been made by the W before the door of court (oral or documentary). It is prima facie hearsay. However, under the credibility rules (ss102/103, 106 with s60 CEA) or in Qld (ss17, 18, 19 with s101 QEA) prior inconsistent statements may be admissible.

NOTE:
* prior means before giving evidence in court;
* does not permit contradiction of a witness through a PIS that are relevant only to the credibility of a witness on a collateral matter, c/f FII.

Do not confuse prior inconsistent statement and hearsay. PIS has nothing to do with truth.

Question 73

In cross examination does a witness need to be shown a previous statement before being questioned (QLD)?

Answer 73

No, however, under s19(1A) QEA if the previous statement is intended to contradict the W, the W’s attention must be called to those parts of the writing.

Question 74

What is the rule that allows the admission of PIS (QLD)? #

Answer 74

There is a link in the QEA: if you prove PIS under s18 then it may be admitted as evidence of facts stated under s101 QEA.

Note: the CL was that it only went to credit.

Question 75

How do you prove a PIS (QLD)?

Answer 75

s18 QEA:
1. give W chance to admit PIS; and
2. give W sufficient detail to enable them to id the statement and occasion:

If W admits PIS (even if says made it but what said in PIS not true) - PIS cannot be proved: if the witness admits it the purpose of discrediting the witness has been achieved.

If W does not admit PIS: may prove it:
(a) if PIS in written form, s19 QEA will come into play; if not,
(b) call a W/s who heard statement being made.

The combined effect of ss17-19 and 101(1)(a) QEA is to make PIS evidence of the truth of its contents once it is proved.

Question 76

What is a prior inconsistent statement? #

When can a PIS be admitted QLD?

Answer 76

A change of the story between event and trial.

QLD: Prior consistent and inconsistent statements need to be mapped through QEA – it is highly interconnected – specifically s101, s94, s17, s18 and 19 - map the relationship so you know which section applies and when to a prior statement.

s94 is about admissibility of evidence re credibility of W who provided documentary evidence admitted under doc evidence sections: ss 84(books of account); 92 (civil) s93 (crim) (where documentary statement of decease /unavailable W); 93A (doc statement of child/impaired person) and s94B (prescribed offences);

Sections 17 (PIS allowed for adverse W),18 (oral PIS statements),19 (written PIS statements) are **about what can be asked in XX **

Section 101 about the admissibility of prior inconsistent statements and prior consistent statements as facts stated

Section 101(3) admissibility of documents used in cross to refresh a persons memory

Ss 18 and 19 are about a witness not admitting (denying) they made a prior statement in cross examination – proof may be given (either by written statement, or other testimony)

If the statement is proved (in cross-examination) under s17,18 or 19 then;

Under s101(1)(a) that previous inconsistent statement is admissible as evidence of facts stated therein

Under s101(1)(b) a previous consistent statement (tendered in re-examination) is proved for the purpose of rebutting a suggestion the person evidence is fabricated (in cross)

However, under s102 QEA it is a matter for the trier of fact as to the weight to be attached to this evidence.

NB: the common law position was that it only when to credit.

Question 77

What sections deal with PIS Cth? When can they be admitted and how used?

Answer 77

ss43-45 CEA

s43: sets out PROCEDURE that must be followed if W does not admit OWN PIS.
s44: sets out PROCEDURE that must be followed if W does not admit someone ELSE’S PIS;
s45: sets out PROCEDURE for production of
documents referred to in XX under ss43/44 CEA.

ss43-45 are NOT directed at admissibility of PIS to prove truth of assertions: need to look at ss101A, 103 and 106 CEA for ADMISSIBILTY and effect if admitted under s60 CEA (makes a statement admissible to prove the facts asserted therein).

Previous representation is a representation made other than in the course of giving evidence in the proceedings (CEA def) and includes an express or implied representation (whether oral or in writing), and a representation inferred from conduct.

NB:
* s108(3)(a) CEA allows tender of PCS to address attack on credit by PIS;
* once PIS admitted into evidence, goes to credibility and hearsay rules waived.

Question 78

How do you prove a PIS (Cth)?

Answer 78

ss43-45 CEA

PROCEDURE for PIS:
If W acknowledges making PIS, it is not necessary to show W the statement/take further steps.

PIS of the party: s43 CEA
If W does not acknowledge, the XXer must: s43(2) CEA:
1. id the circumstances in which the statement was made; and
2. id the inconsistencies between the representation in crt and the statement.

PIS of another party: s44 CEA
Cannot XX W about PIS of another party, unless:
1. If evidence of other representation has been admitted or will be; or if not,
2. document, recording, has been produced to W, after examining doc, W asked if stands by statement in crt, neither XX or W to id/disclose contents.

At this point document to be MFI (see below re admissibility).

Production of docs referred to in ss43/44: s45
* (2) Must produce if crt orders or other party calls for them.
* (3) Crt can examine and give directions as to their use and admit, even if not tendered by a party.
* (5) BUT mere production of doc does not require party to tender.

ADDUCING PIS:
If W continues to deny/not admit PIS, can seek to adduce evidence of PIS through ss101A (def of credibility) together with ss103 (allowed xx if PIS substantially affect credibility of W) or 106(2)(c) (tender to rebut denials of PIS) CEA, as an exception to credibility rule.

NOTE:
* PIS has been admitted, court can give leave to adduce PCS to re-establish credibility: s108(3) (a) CEA.
** once PIS admitted for a credit purpose, can use it for a hearsay purpose (ie to prove truth of contents): s60 CEA.

Question 79

If a witness is shown a document which contains a prior inconsistent statement, is the document admitted into evidence?#

Answer 79

It depends:

If the W accepts that they made the PIS then the W’s answer to the question about the PIS becomes the evidence (s45(4) and (5) CEA).

If the W continues to deny they made the PIS (or does not accept it) then the cross-examining party tenders the statement as an exhibit. It goes to credibility. (Under s 45(5) CEA – there is no requirement to tender document). ss18, 19 and 101(1) QEA.

Question 80

What is the rule in Browne v Dunn?# (hint site case)

Answer 80

In civil or crim, if party intends to lead evidence that contradicts a W, either by submissions or other evidence, then that party is required to put the substance of the contradictory evidence to the W so they have the chance to respond.

The rationale for the rule is a matter of fairness. (Allied Case).

There will be non-compliance with this rule if:
1. a party fails to challenge the evidence of a W; and later
2. makes assertions, or calls evidence to show, that the W should not be believed.

The rule in Brown v Dunn is articulated in s43, s44 and s46 of CEA/ss17-19 QEA.

Question 81

What are the consequences of non-compliance of the Browne v Dunn rule?#

Answer 81

(a) The evidence of the cross-examiner may not be accepted;
(b) The witness may be recalled;
(c) At the most severe end the jury maybe discharged;
(d) On appeal, the court may be inclined to disregard a submission that has not been put to a witness.

Question 82

When does the rule in Browne v Dunn not apply?#

Answer 82

(a) Notice: Notice to the witness

(b) Crazy: Where the evidence is so incredible that cross examination would be of no value

(c) Credit: Challenge as to general credit

Question 83

Consequences of breach of Browne v Dunn rule?#

Answer 83

CL:
1. Crt can allow W to be RE-CALLED for further XX;
2. prty may be TAKEN TO ACCEPT evidence and Crt may not allow party to make the submissions that contradict the W, or to raise it on appeal; but no rule that crt must accept the evidence of the W not subject to XX;
3. may affect the WEIGHT to be given to that W evidence if not XX;
4. caution in applying rule against D in crim trial, but applies against P.

CEA: s46 gives the crt a discretion to allow a W to be recalled, where a contradictory matter has been raised but was not put to the W in XX.

Rules may not apply where:
1. pty already had notice of matter in dispute, and it is obvious in dispute (e.g. pleadings);
2. where credit of W is known to be in issue, no need to put to them they’re ‘lying’ in XX;
3. doesn’t apply in committal proceedings.

Question 84

What is probative value and prejudicial affect of evidence? # (memorise)

Answer 84

The probative value is the force of the evidence (the reliability of the evidence); the prejudicial effect is the risk the evidence will lead to a negative interference that is likely to mislead

Question 85

What is s94 QEA material?#

Answer 85

Section 94(1)(b) QEA - admissibility of evidence concerning credibility of person responsible for statement:

admits inconsistent statements (oral or documentary) to test the credit of statements admitted under s84 (book of acc), 92 (civil ad’ty of doc evi), 93 (crim ad’ty of doc evi) or 93A (st’ment by child/impaired person) – when the **maker **of the statement is not called as a witness.

By virtue of s101(2), a statement admitted under s94 is evidence of facts within the maker’s own knowledge. However, if it complies with s84, 92, 93 or 93A, it does not need the assistance of s 101.

Question 86

When can a witness refresh their memory in court?#

Answer 86

General rule at CL evidence should come from W own memory. BUT:

Three criteria must be met:

1. Must have a **need to refresh **their memory: e.g., be a gap in their memory due to passage of time;
2. It must be from a document which the W either actually compiled or verified at time facts fresh in their memory. i.e., contemporaneous document from the time of the event; and
3. The witness can verify the accuracy of the
   document.

NB: s32 CEA - revive memory in court

Question 87

Are notes to refresh memory admissible?

Answer 87

The document itself does not become evidence - the evidence given by the W is still their oral testimony.

Strictly speaking, a contemporaneous note used to refresh a witness’s memory may not be read onto the record (Moore v Skinner).

Also if doc used to refresh W memory, counsel for other party may call for the doc and XX W on parts used to refresh memory, without the need for the entire doc to be admitted into evidence: Walker - but if XX goes beyond that, the whole doc goes in as evidence of the truth of its contents.

However, exceptions apply s 101(3) QEA. s33 CEA (police notes)

Question 88

What is the rule in Walker v Walker?

Answer 88

When A calls for a document that B has in court, and B complies, B may then require A to tender it. Walker v Walker does not apply to the inspection of a contemporaneous note.

The rule does not apply to Cth: abolished by s35 CEA.

Also - If doc used to refresh W memory, counsel for other party may call for the doc and XX witness on parts used to refresh memory, without the need for the entire doc to be admitted into evidence: (exception to the Walker and Walker rule). But if XX goes beyond that, the whole doc goes in as evidence of the truth of its contents.

Question 89

What is a hostile (CL)/adverse (QLD)?#

Answer 89

A witness you have called that is deliberately withholding evidence or not telling the truth in examination in chief.

Question 90

What is an unfavourable (Cth) witness?#

Answer 90

s38(1) CEA deals with ‘Unfavourable’ W.

Evidence unhelpful to the party calling the witness and without making a genuine attempt to give evidence, or where made PIS.

Question 91

What is the Qld law dealing with adverse (aka hostile in CL) witnesses (during examination in chief)?#

Answer 91

s17 QEA

Provides that a party producing a witness shall not impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence. If the court is of the opinion the witness is adverse (hostile) then the court may grant leave for the party to prove the witness has made prior inconsistent statements.

(matter for judge, and in jury trial - decided on voir dire)

QEA just deals with putting PIS to adverse W.

Once W declared hostile/adverse, CL allows XX of W generally, with same discretions of HH/limitations as ordinary XX.

May re-examine W

Question 92

What’s the rule in the in CEA regarding unfavourable witnesses?#

Answer 92

s 38 CEA

Provides that a party who called a witness may, with leave of the court question the witness as though the party were cross-examining the witness about the matters set out at (1) i.e.:

(a) unfavourable evidence given;
(b) matter reasonably expected to know about; and
(c) PIS; and
(d) (with leave) as to credibility (credibility rules of CEA apply).

but not as wide as CL and other areas of XX may require leave.

NB: Section 38 is termed Unfavourable witnesses while in QEA s17 (although it doesn’t use the term) is about adverse witnesses, CL terms it hostile witnesses; of which in all cases you need leave to lead questions.

Questioning a witness under s38 is considered cross examination (it is still under the XNC Division),

May re-examine W

Question 93

There are two powers (discretionary powers of the Judge) in the QEA to reject evidence what are they?#

Answer 93

s98 rejection of statements and representations (re documentary evidence admitted under Part 6 Admissibility of statements and representations); and

s130 criminal proceedings – discretion to reject evidence if crt is satisfied it would be unfair to admit the evidence.

Question 94

What is the rule in Bunning v Cross?

Answer 94

Is the common law discretion to exclude evidence which as been improperly or illegally obtained.

The statutory provision in CEA is s138(1) but the onus is slightly different.

NB: Discretions under s98/s130 QEA have their own Part

Question 95

What is fresh evidence?

Answer 95

Fresh evidence is evidence which did not exist at the time of the trial or which could not with reasonable diligence be discovered and if admitted there is a high degree of probability that there would be a different result.

Question 96

What is the rule in Jones v Dunkel?#

Answer 96

An unexplained failure by a party to call a witness or to tender other evidence, - may (not must) lead to an inference that the uncalled evidence or missing material would not have assisted the party.

Notes:

It may allow the trier of fact to more readily draw inferences from the other evidence, but the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it.

Jones v Dunkel inference will not always be drawn: whether it will be drawn depends on weighing all of the evidence.

It does not compel time to be wasted by calling unnecessary Ws (e.g. 5 x W who can say the same thing).

The rule has no application if the failure to call is explained (party against whom rule could operate have onus of establishing explanation). i.e.,

** reason why W not called may have no relevant relationship with the FII: it may be related to, for example, the fact that the party simply does not know what the W will say. A party is not, under pain of a detrimental inference, required to call a witness “blind”; or
** A Jones v Dunkel inference may not arise if, for example, the W has a reason for not telling the truth or refusing to assist and the party who may call the W is aware of this.

Crim: as a general rule should not infer that evidence of Ws whom the A did not call would not have assisted the accused.

Where W who might have been expected to be called is not called by P, the ques is not whether can properly reach conclusions about issues of fact but whether, in the circumstances, should entertain a reasonable doubt about the guilt of the accused.

Question 97

When does the Jones v Dunkel rule not apply?#

Answer 97

(a) To the accused in criminal proceedings

(b) When there is a reasonable explanation for not calling the witness (death/illness) (ASIC v Rich)

(c) Hostile witness

Question 98

What is the rule that abolishes the original document rule?

Answer 98

s51 CEA

Question 99

What is the rule of admissibility of admissions made by coaccused? How does it differ to co-conspirators#

Answer 99

Co-accused

The general rule is that evidence of acts done or things said by another or others out of the presence and hearing of the defendant is not admissible. Eg. An out of court admission by one person is not evidence against another; ‘John and I stole a car’ is not admissible against John.

Co-conspirators

Once there is reasonable evidnce form which an agreement can be inferred, evidence of acts done or things said in the furtherance of the common purpose can be considered.

** s57(2) CEA:** admissibility of evidence of co-conspirators – provisional evidence – crt may use the evidence (on basis of provisional relevance) in determining whether a common purpose exists.

However, in the case of co-conspirators, once there is reasonable evidence from which an agreement can be inferred, evidence of acts done and things said by A & B out of the presence and hearing of defendant C, in the furtherance of a common purpose, can be considered proof of the defendant’s (C’s) guilt (Tripodi v Queen)

Question 100

What is an admission?

Answer 100

An admission is any statement, express or implied, oral or written, which is adverse to a party’s case.

Question 101

What is the difference between a formal and informal admission?

Answer 101

Formal admissions bind the party by whom they were made, but informal admissions may always be contradicted or explained away by their maker. It is for the tribunal of fact to determine the weight to be attached to them.

Informal admissions are admissible as evidence as to the truth of the contents. (CL exception to hearsay)

Question 102

Admissibility of confessions – know the requirements of admissibly the standard if challenged (the onus on prosecution) discretion to exclude

Answer 102

A confession of a crime is only admissible against the party making it if it is voluntary.

Question 103

Know the discretion to exclude evidence in civil proceedings

Answer 103

CEA:
s135: general discretion to exclude if unfair, misleading or cause waste of time;
s138: discretion to exclude where **illegally or improperly **obtained; and
s136: discretion to limit use

QLD:
s98 crt has discretion to reject evidence if in interest of justice (PIS/docs):

CL:
Christie direction: discretion to exclude evidence when it is of relatively slight probative value and the prejudicial effect to a fair trial of its admission would be substantial;

It is not the damage to D case which is relevant, but damage to prospects of a fair trial: Christie

Question 104

Know judicial notice; one or two sentences (state relevant Cth and Qld statutory sections)

Answer 104

Court accepts the existence of a fact without evidence, where:

1. the existence of fact is common knowledge or known generally in community: s144 CEA.: e.g.,
   *sun rises to east, it is dark at night. BUT parties should be given the chance to argue point if they wish, CL and s144 CEA; or
2. fact can be ascertained by reference to a source whose accuracy cannot be questioned. e.g. Act of parliament: s43 QEA/ s143 CEA

Judicial notice required for the law (statutory or common law): ss41-43 QEA; s143 CEA

Question 105

Hearsay questions/notes

Answer 105

Out of court, inadmissible, truth (the three elements to hearsay); can be oral, written statements or conduct

Question 106

What is original evidence? (Hint know Christie and Lee discretion)

Answer 106

Evidence admitted for a non-truth purpose.

But note discretion of the court re admissibility:

Know Christie and Lee discretions; don’t worry about other directions

Christie discretion: if evidence is of relatively slight probative value, and the prejudicial effect to a fair trial would be substantial, it should be excluded under judicial discretion.

I.e.: while some evidence may be highly relevant, may also be highly prejudicial to the prospect of a fair trial and should therefore be excluded under judicial discretion.

Lee discretion: adopted the Christie discretion and also established that the burden of proof on the issue of unfairness is on the accused, on BOP.

Question 107

Probative v Prejudicial?#

Answer 107

Probative: extent to which evidence could affect the assessment of the probability of the existence of a FII: CEA dictionary

Prejudice: evidence to which considerable weight is given for the wrong reasons or may mislead the trier of fact.

NOTE: just because very probative does not mean prejudicial.

Question 108

What is original evidence and how does it differ to hearsay?#

Answer 108

Evidence that a statement was made (as opposed to an assertion that it was true) is classed as original evidence and not hearsay.

A direct statement may be either hearsay or original evidence depending on the precise purpose for which it is tendered and the precise FII at which it is aimed.

Question 109

Are statements admitted as original evidence exceptions to the hearsay rule?

Answer 109

No, they stand outside the rule because they lack an essential ingredient of hearsay; they are tended as relevant facts, not as true narratives.

There is a true exception to the rule when a prior statement is admitted to prove the facts it asserts despite the fact that it infringes the primary rule of exclusion.

Question 110

What is hearsay?#

Answer 110

Evidence in court must be restricted to what the witness perceived with one of their senses. It must also be restricted to statements of fact. Anything else is hearsay.

Question 111

What is the rule against hearsay?#

Answer 111

Out of court representations cannot be tendered for the purpose of proving the facts asserted in them. (Walton)

The rule against hearsay provides that statements made outside of court (what someone supposedly said), cannot be used to prove the truth of what is being asserted (in court – during testimony).

However, it may be admissible to the fact the statement was made (original evidence).

Question 112

Why is there are rule against hearsay?

Answer 112

The rule exists because hearsay statements are inherently UNRELIABLE and should therefore be excluded.

They are inherently unreliable because the person repeating the assertion has no personal knowledge of the facts being asserted and the assertions made by the person other than the W cannot be cross-examined.

Witnesses, whether for the P or D, are required to testify to what they saw, heard, smelt or felt and not to what they know because of what they have been told.

The exceptions arise where the circumstances of the evidence enhances its reliability.

Question 113

What type of evidence does the rule against hearsay apply?

Answer 113

The rule applies to all kinds of assertions, whether made orally, in writing or by conduct.

The hearsay rule applies to conduct intended to be assertive, such as nods, head shaking, signs and other gestures.

[The rule also applies to the tendering of evidence during proceedings.]

Question 114

What are the common law exceptions to hearsay?

Answer 114

1. Informal admissions that are not formal confessions – a prior statement by a party that is adverse to that party’s interests is admissible;

The specific exception in the readings is admissions:
(a) Admissions of the parties;
(b) Confessions in criminal proceedings
.
Both exceptions come under the exception of admissions, however ‘confessions’ has specific limitations because of the nature of criminal proceedings.*
*
2. **Res gestae (utterances) **– things so close to time and space so as to be inseparable from it – they are admitted because its spontaneity enhances their credibility – must be said at the same time, or close to the event - and still dominant in persons mind, no chance of reflection.

3. Declarations by person now deceased/against interest;
4. Aboriginal person in Native Title - re TLC
5. Declarations as to the health, fitness and mental state – ‘ouch’ when blow to the head; Walton - state of mind of their intentions;
6. Statements made in previous proceedings;

Question 115

What are the statutory exceptions to the rule against hearsay in Queensland?#

Answer 115

1. s92 QEA: Documentary hearsay in civil cases; if firsthand hearsay or part of an undertaking, can admit without calling maker if dead/unfit/out of State/Aust/ not found/cause undue delay;
2. s93 QEA: Documentary hearsay in criminal cases: if maker is dead/unfit/cannot be found, and it is a record made in the course of trade or business, and cld be given orally;
3. s93A QEA: Out of court statements by children and witnesses with an impairment of the mind;
4. s93B QEA: Out of court statements: in prescribed criminal proceedings, if it is firsthand hearsay, and maker dead or mentally/physically incapable of giving evidence, and rep made when/shortly after or circumstances make it highly probable reliable or against interest of maker.

*note: s93C QEA: where a jury, on request by a party, crt required to give a warning re s93B evidence

5. s95 QEA: Documentary hearsay generated by process or device;
6. s95A QEA: DNA evidence by certificate in criminal proceedings

NOTE: both for s92/93, statement must be one which if given orally would be admissible, i.e. not inadmissible opinion, subject to privilege or ‘second-hand’ hearsay.

Question 116

What is the definition of an undertaking for the purposes of QEA?

Answer 116

An undertaking is defined in Sch 3 as including any public administration and any business, profession, occupation, calling, trade or undertaking whether engaged in or carried for profit or not in Qld or elsewhere.

Question 117

What is the difference between s92(1) and s93(1) in QEA?

Answer 117

Section 92(1) pertains to the admissibility of documentary evidence in civil proceedings and s93(1) pertains to the admissibility of documentary evidence in criminal proceeding

Question 118

What are the hearsay exceptions to documentary evidence in Queensland? Where can they be found? (hint – they are statute based)

Answer 118

Note to self: Part 6 of QEA contains statutory exceptions to hearsay contained in documentary evidence – it’s called admissibility of statements and representations – Chapter 7 concerns the Reproduction of documents without further proof – they will be admissible.

1. s92 QEA – for civil cases only
2. s93 QEA – for criminal cases only (where relatest to undertaking)
3. s95 QEA – for computer records in all cases
4. s93A QEA – for statements by children/mentally impaired
5. s93B QEA – for statements in prescribed proceedings when the maker has since died

Question 119

What are the Cth statutory rules and exceptions to the rule against hearsay?

(hint: entire Cth law on hearsay is statutory)

Answer 119

Rule:
s59 CEA: evidence of prev rep is not admissible to prove fact asserted by the prev rep;

Exceptions: **
1. s60 CEA: evidence relevant for a non-hearsay purpose; (would cover cases like Subramaniam)
2. ss63-66 CEA: first-hand hearsay:
(a) civil: s63 (if maker u/a), or s64 (if
maker available);
(b) crim: s65 (if maker u/a), s66 (if
available);
3. s66A CEA: contemporaneous statement about health, intentions, knowledge etc;
4. s69 CEA: business records;
5. s70 CEA: tags and labels;
6. s71 CEA**: electronic communication;
7. s72 CEA: Aboriginal and Torres Strait Islander TLC;
8. s73 CEA: evidence about marriage, family history or family relationships;
9. s74 CEA: evidence re existence of public or general right;
10. s75 CEA: evidence for IA (if source referenced);
11. s81 (s82) CEA: admissions, or prev rep that relate to admissions at time
admissions made (or shortly before/ after);
12. s87(2): rep about employment/ authority;
13. s92(3): judgments and convictions;
14. ss110 &111 CEA: character evidence of and expert opinion about accused.

Question 120

What is the banker’s book rule in QEA?

Answer 120

Section 84 QEA - provides that a copy of an entry in a bankers’ book shall in all legal proceedings be received as prima facie evidence of such an entry. This provision is to save bankers time in finding the original.

Question 121

What is the meaning of opinion?#

Answer 121

Opinion means any inference from observed or assumed facts

Question 122

What is the rule against opinion evidence at CL and in statute in Fed Court?

Answer 122

The witness must not state an opinion on the facts, but should confine the evidence to describing the facts.

Expanded:

A W may give evidence of what they have directly experienced (sight, sound, taste, smell, touch), without any inference, interpretation, belief or opinion. ie., Ws are not entitled to give evidence on what they have not seen or heard directly.

Federal: Under s76(1) CEA: evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Question 123

Why is there a rule against opinion evidence?#

Answer 123

Opinion is the interpretation of facts. Interpretation of the facts is the job of the jury or judge, whomever is the finder of fact – not the witness.

Question 124

Be aware what jurisdiction you are in for expert evidence questions

Answer 124

QLD: governed by Common Law;

CTH: has statutory provisions and exceptions.

Question 125

What are the exceptions to the rule against opinion evidence at CL?#

Answer 125

1. Non-expert (lay) opinion;
2. Expert evidence;
3. Quasi experts.

Expanded:
1. **Lay **expert rationale:
Non-expert opinion evidence – as a general rule, a non-expert W must only give direct evidence of matters they perceived with one of their five senses, without inference, evaluation, interpretation, or opinion. But there are some matters of common experience that are difficult to relate without an element of opinion. e.g. identification evidence; apparent age; weather; sobriety, bodily health.

But what a W may not do is go on and offer legal opinions based on that evidence.

2. Expert opinion rationale:
   The law recognises that some matters require special knowledge or expertise, and that judges and jury are not necessarily equipped to draw inferences from facts stated by Ws. Therefore, a W is allowed to state an opinion with regard to matters provided the W is an expert.
3. Quasi- expert rationale:
   a person who is considered an expert based on experience rather than tertiary qualification: Weal. But they must be able to provide evidence an ordinary person/W could not provide. (at CTH: covered by s79 CEA).

E.g., W familiar with a machine’s nuisances may give evidence of the tendency of the machine to behave in a particular way.

Question 126

What is expert evidence?

Answer 126

An expert opinion is an inference from primary fact in the light of an expert’s knowledge of a field of expertise.

Question 127

What is non-opinion expert evidence?

Answer 127

Where an expert identifies facts which may be obscure or invisible to a lay witness. Eg a chemist may explain how a drug works. It doesn’t consist of an opinion based.

Question 128

When can a non-expert give opinion evidence CL? What is the rule?

Answer 128

A witness may state an opinion or impression when the facts of what they perceived with their physical senses are too complicated to be distinctly narrated.

In short, evidence of opinion can be given if it is difficult or impossible for a W to separate the opinion from the perceived facts on which it is based.

Eg of non-expert opinion is admissible:

Age, sobriety, speed, time, distance, weather, handwriting and identity in general, bodily health, emotional state, conditions of things.

Opinion as to reputation and character are given by non-experts so to whether someone they know is sane based on their observations of their habits and demeanour.

Identification evidence by opinion is common – yes, that’s the man who’s wedding I attended (while pointing at a photo) – it is admissible.

Question 129

When can expert evidence be admitted under CL? What are the 7 factors to admission of expert evidence at common law (Makita v Sproule)?#

Answer 129

The conditions for admissibility of expert opinion evidence may be summarised as follows:

1. It must be demonstrated that there is a field of special knowledge;
2. W must be a qualified expert in that field.
   There must be an identified aspect of that field in which the W demonstrates that by reason of specified training, study or experience, the witness has become an expert;
3. It must be demonstrated that the opinion
   is wholly or substantially based on the witness’s expert knowledge;
4. The expert must identify the assumptions of primary fact on which the opinion is offered (the assumption identification rule);
5. The facts on which opinion is given must be proved by admissible evidence (the basis rule). The opinion is not admissible unless evidence has been or will be admitted whether from the expert or from some other source, which is capable of supporting findings of primary fact which are ‘sufficiently like’ those factual assumptions to render the opinion of the expert of value (e.g. opinion on a faulty heater not accepted, where W had examined not the heater, but another similar one)
6. There must be a demonstration that the facts on which the opinion is based form a proper foundation for it.
7. The opinion of an expert requires **demonstration or examination of the scientific or other intellectual basis **of the conclusions reached.

There is no test for assessing the reliability of an expert witness in Australia law, provided establish necessary link between opinion and specialised knowledge - no basis for objection.

Procedural rules re expert evidence in civil proceedings are found at rr423-429 UCPR

Question 130

What are the statutory exceptions to the rule against opinion evidence?

Answer 130

Under CEA, exceptions to the opinion rule are:

1. s50(3): summaries of voluminous/complex docs;
2. s77: evidence relevant other than as proof of fact about which opinion expressed;
3. s78: LAY OPINION - if based on what they perceived and evidence is necessary for adequate account or understanding of their perception of the matter;
4. s78A: ATSI re their TLC;
5. s79: EXPERT OPINION - if W has specialised knowledge based on training, study or experience, rule does not apply to opinion based on that knowledge;
6. s81: admissions;
7. s92(3): judgments and convictions;
8. s110 & 111: character of, and expert opinion about Acc person.

Note re s79: EXPERT OPINION:
* Whether an expert opinion is wholly or substantially based on specialised knowledge is to be determined on BOP: s142 CEA

• W opinions will often be based on out of court representations, evidence of those reps will generally be admissible to explain assumptions on which opinion is based. If admissible for that purpose, may also be used to prove existence of any facts asserted in that rep: s60 CEA. Due to potential unfairness on such an application, may be desirable to use s136 CEA discretion to limit use.

Question 131

What is the ultimate issue rule at CL? Are there statutory exception;

Answer 131

At common law, generally expert should not seek to decide the ultimate issue - but this rule is not absolute

May be necessary (e.g. medical evidence) so trier of fact can decide.

Even if expert evidence on ultimate issue is received, it does not need to be disregarded, but will not bind the trier of fact

Has been abolished at Cth by s80 CEA, which says opinion evidence is not inadmissible only because it is about a FII or an ultimate issue or a matter of common knowledge.

Question 132

What is the basis rule?#

Answer 132

The basis rule is a rule of admissibility (Makita v Sproule). It is a common law rule which requires party tendering expert evidence to identify the facts upon which the opinion is based and to prove such facts by admissible evidence.

Question 133

Is the basis rule found in legislation?

Answer 133

No - s79 CEA does not incorporate the CL ‘basis rule’ as a pre-requisite for expert opinion evidence.

Question 134

Is there contention regarding the basis rule?

Answer 134

Yes, if a party fails to prove the facts underlying an expert’s opinion, such failure goes to the probative weight of the evidence, not its admissibility.

Question 135

What is an admission?#

Answer 135

An admission is any statement written or oral which is adverse to a party’s case. (CEA Dict, Part 1)

May be formal or informal, conditions:

1. **CAPACITY: **can only bind themselves and not 3rd parties (unless business partners etc);
2. **RECEPTION: **will be of the entire statement.

Question 136

Are admissions admissible? What is the general rule? What is the statute?#

Answer 136

1. Hearsay rule and opinion rule do not apply to evidence of (first-hand) admissions: ss81-82 CEA; CL for QLD.
2. Formal (= direct evidence):

(a) **CIVIL: **pleadings, NOID: r166 UCPR/r16.02 FCR: once admitted those facts are deemed proven, no need to call evidence.

(b) CRIM: either A or P, e.g. plea of guilty admission to all elements of offence, no evidence need to prove matters admitted, but can call evidence to rebut.

(c) Formal admissions can only be withdrawn with leave of the crt**.

3. Informal:

(a) Is an out of court statement adverse to the maker’s case. Tendered to prove the truth of their contents in civil and criminal proceedings. Self-serving statements are not admissible.

(b) Admissible as an exception to the hearsay/ opinion rule - what a party admits being true may reasonably be presumed to be so.

(c) Informal admissions may be contradicted or explained away by their maker, then it is for the tribunal of fact to determine the weight to be attached to them.

Question 137

What is the difference between an admission and confession?#

Answer 137

An admission is the acceptance of a fact while a confession is the admission of guilt.

Expanded;

The world ‘confession’ is used to mean an explicitly admission of guilt while ‘admission’ is used to mean acknowledgments of key facts tending to prove guilt.

CTH: uses the expression ‘admission’ for both.

Question 138

Why are admissions admissible?

Answer 138

Because a statement made against one’s own interest is more likely to be true.

Question 139

What is an informal admission?

Answer 139

An informal admission is an admission by words or conduct which is admissible as to the truth of its contents. Informal admissions may be contradicted by evidence tendered by the party.

Question 140

What is a confession?

Answer 140

A confession is an admission of guilt, made in court or in writing. (Doyle)

Question 141

Are confessions admissible? If so, what are the rules CTH?

Answer 141

CTH:
1. s81 CEA: exception to HR and opinion rule and is admissible; unless excluded because:

(a) s82 CEA: not first hand;
(b) s83 CEA: about 3rd party;
(c) s84 CEA: influence by violence/threat (focus is on police/external behaviour, not the admitters circumstances);
(d) s85 CEA: (Crim) (unreliable) by D to investigating official who D thought could influence cont prosecution, unless circumstances show unlikely admission was adversely affected. Vulnerability of Acc may give rise to ques re reliability);
(e) s86 CEA: (Crim) record of oral questioning, unless D signs doc with record of ques as true record.

ALSO:
s87 admissions can be made with authority;

s88 CEA: for purpose of deciding admissibility, crt can assume person made admission.

s89 CEA: (Crim) no unfavourable inference if Acc remained silent to quest of police - would only be relevant to prove failed to ans ques if that was a FII.

DISCRETION: s90 CEA :(Crim) crt has a discretion to exclude admission, if evidence from P, and in circumstances would be unfair to D (not if improper/illegal conduct - that is s138 CEA).

NOTE: if breach of ss 84/85 CEA(Crim) - crt doesn’t have a discretion and must exclude.

Question 142

Are confessions admissible? If so, what are the rules QLD?

Answer 142

The rule is that a confession of a crime is only admissible if it is voluntary. A confession is not voluntary if it is preceded by an inducement unless that inducement is removed expressly or through the passage of time.

QLD:

CL: only admissible if VOLUNTARY (McDermott)

• is a ques of fact for judge on a voir dire (BOP), if voluntariness challenged - onus on P on BOP;

Will not be voluntary if:
1. in response to OPPRESSION;
2. in response to THREAT;
3. in response to PROMISE/INDUCEMENT by person in authority;
4. will is overborne: DURESS, INTIMIDATION, undue insistence or pressure.

Section 10 of the Criminal Law Amendment Act 1894 (Qld): Confessions made due to threat or inducement/promise - inadmissible.

Police required to comply with PPRA where indictable offence but does not render confessions obtained in contravention as inadmissible - matter for the crt.

Question 143

There are two strict rules and four discretions when it comes to the admissibility of confessions, what are they?

Answer 143

Two strict rules:

1. A confession is not voluntary if it is preceded by a threat or promise unless it is removed; and
2. Admission is involuntary if it’s a basal involuntariness (the accused’s mind is unbalanced.

Discretions:

1. Court may exclude evidence obtained improperly: s138 CEA; Swafield (focus on degree and kind of illegal/improper conduct and if wld be made out but for the conduct; Bunnings v Cross (onus on A to prove misconduct and justify exclusion).
2. If it would be unfair to use in evidence against the accused: s90 CEA (Crim); Swaffield/s130 QEA
3. Must exclude in crim proceedings if the prejudicial effect exceeds its probative value: s137 CEA
4. General discretion to exclude under s135, and limit use if unfairly prejudicial or misleading or confusing: s136 CEA

Question 144

What is an inducement?

Answer 144

An inducement is a threat of harm or promise of benefit made by a person in authority prior to the confession/admission.

Question 145

What is a person of authority?

Answer 145

Person of authority is anyone the prisoner might reasonably suppose to be capable of influencing the course of the prosecution.

Question 146

What is the meaning of voluntary?

Answer 146

Voluntary does not mean ‘volunteered’ but made in the exercise of a free choice of speech or to be silent.

Question 147

What is the statutory provision in CEA for the admission of evidence in determining whether a common purpose existed? Add this to part on co-conspirators.

Answer 147

Section 57(2) EA95 – Provisional relevance - provides for the use of evidence in determining whether a common purpose existed.

Statements/admissions may be admitted under exceptions to the hearsay rule as evidence of the truth of the statements made in the absence of the Acc. Usually arises where conspiracy is alleged, but can arise where alleged that substantive offences have been committed by persons acting in concert.

Anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator.