Evidence problem solving

Question 1

Who determines admissibility?

Answer 1

Determined by HH, on BOP, taking into acc importance of evidence in proceedings & gravity of issue: s142 CEA/Briginshaw

Question 2

Is it relevant?

Answer 2

Def: Cth: s55; QLD: Goldsmith
Consequence if not relevant: not admissible s56 CEA/ Smtih

Question 3

What type of evidence and what means of proof required?

Answer 3

Testimony: original/hearsay
Documents: sch 3 QEA (def); ss44-91 QEA/s153 CEA (official); s79,80 QEA (crim record); ss84, 85 (business records):
Real: object, appearance of P, places.

Question 4

What use/s is to be made of the evidence?

Answer 4

Relevant to Hearsay Rules - if out of crt statement, relied upon for truth of contents - inadmissible hearsay unless falls under an exception to the HR rule.

Question 5

Are there any exclusionary rules that apply?

Question 6

Will one permissible use, allow it to be used for an otherwise impermissible use?

Answer 6

s60 CEA = yes
Subramaniam =Qld: No

Question 7

Is the discretionary exclusion of the evidence appropriate?

Question 8

Based on the facts, is the evidence direct/circumstantial, or else could it be relevant to credibility?

Question 9

Consequences if there has been a failure/refusal to comply with a request?

Answer 9

Crt can make an order that evidence not admitted: s169(1(c)) & 3 CEA

Question 10

Is any discretionary prohibition of a particular use appropriate?

Answer 10

1. QLD: ss98, 130 QEA/Christie discretion; CTH ss 135, 136, 137, 138 CEA: act as safety net after applying relevance test/exclusionary rules and exceptions;
2. recite what probative/prejudicial value are and consider if limits may be placed on admissibility via s136 CEA (e.g. can be used for credibility purpose, but no a hearsay purpose);

Note that: in managing prejudicial effect, crt can consider available jury directions which may mitigate.

Question 11

Civil, if order can/should be made that rules of evidence be waived?

Answer 11

E.g. if evidence not in dispute, or excessive costs: s190 (3) CEA; and s129A QEA - orders that evidence may be given in a different way e.g. re strict proof doc, id, authority unnecessary, unreasonable expense delay/inconvenience.

Question 12

Exceptions to opinion evidence rule?

Answer 12

1. Lay evidence: (Sherrard)/s78 CEA: does not apply to opinion is based on what P saw, heard, or perceived and opinion necessary to give full picture of P perception of matter/event:
2. Expert Evidence/Quasi expert (Weal)/s79 CEA: if:
   a. P has specialised knowledge, based on
   training, study or experience; and
   b. opinion is based on that knowledge. BUT:
   may still be subject to exclusion/limitation
   under ss135, 136 or 137 CEA;

 at CTH ultimate issue rule abolished: s80 CEA
 Procedure rules re expert evi: rr423-429H UCPR;
and r23 FCR

Question 13

Opinion evidence?

Answer 13

is generally inadmissible: s76 CEA

Question 14

How id if hearsay? Step 1

Answer 14

1. What is the previous representation?
2. Who is the out of court declarant?
3. How did they make the representation? (Words,
   written words, assertive conduct?)
4. Who is the in-court reporter? (usually different
   person, could be a document, cld be same
   person)

Question 15

How id if hearsay? Step 2

Answer 15

1. What’s the purpose of tendering the evidence?
   a. Using the words themselves as evidence of
   fact to assert truth? (hearsay
   and prima facie inadmissible)
   b. For some other purpose (s60 CEA/
   credibility/original: State of mind/statement
   made) (maybe admissible)

Question 16

If admissible hearsay, what use can be made of evidence?

Answer 16

If evidence admissible for some other purpose s60 CEA allows use (for any), BUT not for admissions in crim proceedings, and

If significant risk of misuse, s136 CEA can be used to limit its purpose.

Question 17

If inadmissible, do any exceptions apply?

Answer 17

FCT: Civil: ss63/64 CEA; Criminal: ss65/66 CEA:
BUT limited to firsthand hearsay and declarant competent (s62).

Other: Business records s69; tags/labels: s70; electronic record: s71; Aboriginal TLC s72; re’tionship: s73; public/general right: s74; and IA evidence s75 CEA;

QLD: CL: Walton (phone evidence), Res Gestae;
Civil: s92 QEA admission of documentary evidence; Criminal: s93/93A, 93B/C QEA (documentary evidence re business records; by child/person with impairment of mind; prescribed offences)

Question 18

Testimony - competency of W?

Answer 18

Competency relates to if lawfully can be called: general rule yes: s9 QEA, s12 CEA: but check: (s9A-D QEA; s13 CEA), will either be:
a. Competent to give sworn evidence;
b. Competent to give unsworn evidence; and
c. Not competent.

Question 19

Testimony - capacity/compellability of W?

Answer 19

Capacity/compellability, means if lawfully obliged: general rule yes s9 QEA/s12 CEA; but check s17(3) CEA; and privilege:
- Accused: No: s8 QEA/ Wessensteiner, s17 CEA;
- Accused’s spouse, parents, children: yes: ss7, 8
QEA; s18 CEA
- Special W: children: s9E/ss21AA-AD QEA;
Protected W s21M QEA.

Question 20

What are the privileges W can rely upon (CTH)?

Answer 20

1. Against self-incrimination: s128 CEA;
2. Against State/public interest: s130 CEA;
3. Client legal privilege: ss117, 118, 119, 122, 125;
4. Journalist privilege: s126K CEA.

Question 21

How apply privileges (CTH)?

Answer 21

Against self-incrimination: s128 CEA:
1. W must object to giving evi on grnd evi may tend
to prove has committed an offence/or liable for
civil penalty: s128 CEA
2. Crt must determine if reas grnd for obj, if no, W
must answ;
3. If reas grnds, crt not require W to give evi &
inform not req to answ, unless crt requires and
gives a certificate.

Against State/public interest: s130 CEA:
1. ID public policy/secret with precision;
2. Crt to weigh up PI in preserving confidentiality
(defence security/damage int relations/
investigation of offences etc v. public int of
disclosure.

Client legal privilege: ss117, 118, 119, 122, 125 CEA:
1. ‘Client/lawyer’ def s117, includes receptionist,
assistant;
2. If conf communication/doc, between lawyer &
client for dominant purpose of legal advice =
privilege applies; s118
3. If conf communication/doc prepared by TP for
dominant purpose of lawyer providing legal
advice/instructions, privilege applies: s118;
4. If conf com’tion/doc b/w client and TP, or lawyer
and TP, relats to dominant purpose of legal
services re proceedings, privilege applies: s119
5. No application if (a) express or imputed waiver
(client knowingly/vol discloses, acts in a way
inconsistent with conf: s122 CEA; or (b)
furtherance of a crime: s125 CEA

Journalist privilege: s126K CEA

Question 22

What are the privileges W can rely upon (QLD)?

Answer 22

Sexual assault counselling privilege: ss14C-14I QEA;
Journalist privilege: ss14V-14ZG QEA;

Question 23

Rules for evidence in chief?

Answer 23

No leading Questions: s37 CEA; Connolly (exceptions (leave/formal/no objection/expert/s33 Police CEA);

a. Refresh memory: can seek leave to refresh: Van
Beelan; s32 CEA (in crt: can be ref’ed to, read
aloud, w leave, if mde when fresh or W said true;
w leave W may read if memory not revived, but
must be produced if ordered); s34 CEA (out of
crt, OK but must produce for inspection or cld
be excluded – but insp does not require it to be
tendered s35 CEA/Walker);

b. Unfavourable/hostile W: counsel cannot
discredit own W s17 QEA; but s38 CEA (w leave
can XX, incld re credibility, PIS): note links with
credibility rules/PIS:
Step 1: Unfavourable/Hostile? s38 CEA; s17 QEA
Step 2: s106 QEA application of steps to allow
PIS in = Browne v Dunn; ss17-19 QEA (if
PIS proved admissible as evidence of
facts therein: s101QEA (weight s102
QEA), s60 CEA;
Step 3: application of s60 CEA exception to
hearsay rule -in for one purpose in for
all.
c. Acc: where give evidence not entitled to refuse
to answer on basis would tend to prove guilt:
s15 QEA
d. Failure to call W: Jones v Dunkel: Civil:
unexplained failure to call W or tender doc/evi,
may lead to inference that evi wld not have
ass’ted; Crim: does not apply to Acc.

Question 24

Rules for cross-examination?

Answer 24

Not limited to non-leading question:
a. But no improper, misleading, confusing, unduly annoying, harassing, intimidating, offensive,
oppressive, humiliating, repetitive, belittling otherwise inappropriate Q: s41 CEA, s21 QEA;

b. Crt may disallow/direct not to answ due to collusion with xxminer, mental/intellectual disability etc: s42 CEA; or Q re credit if not materially impair: s20 QEA;

c. PIS: procedure must be followed: s43CEA, (if not admitted) ss18-19 QEA: W asked about F,
inconsistency b/w crt s’ment and earlier, latter proved through W if admits earlier, or another W if not (NB. cross ref credibility rules) [if PIS proved admi’ble as evi of facts therein: s101 QEA (weight s102 QEA), 60 CEA]; if ordered must
produce doc XX on PIS: s45 CEA, Walker;

d. Brown v Dunn: must put to W evi that intend to lead later to contradict or discredit W so they
have opp to explain. Breach may affect weight of W evi, discharge of jury, subs in breach may be rejected on appeal; s44 CEA: XXner not put Q re PR of another P unless has/will be ad’ted, or shown to W and asked.

e. Special rules when XX protected W: ss21M-21O QEA

Question 25

What is finality of issues?

Answer 25

Answers to Q in xx re collateral issue (e.g. re credit), are final, can only ask Q, but not put more evi, except: PIS (s106 CEA (if s43 procedure re PIS followed), prev convictions (ss15A-16, ss353/54 (proof) QEA)

Question 26

Rules about re-examination?

Answer 26

Can only ask questions about matters arising in XX, unless leave granted: s39 CEA, e.g. PCS to re-establish credit.

Question 27

What is ID evidence?

Answer 27

Assertion by W that A was or resembles (based on what W saw, heard or perceived using 5 sense) a person who as present at the office or an act connected to office)

Question 28

Admissibility of ID evidence?

Answer 28

1. Visual Identification Evidence, is not admissible unless ID parade has been held/not practical to hold one/or Acc refused: s114 CEA; (best form: Alexander)
2. Picture Identification Evidence, is not admissible if A in police custody unless refused ID parade or appearance changed b/w com’sion of offence and taken in custody: s115 CEA; (only in exception circum: Alexander)

Question 29

If ID evidence relied upon, what warning should be given?

Answer 29

Domincan warning/s116 CEA warning: Juries must be warned of the dangers of acting upon ID evidence.

Question 30

Credibility of W admissible (Cth)?

Answer 30

Credibility evidence inadmissible unless exception applies: s101A, 102CEA

Question 31

What are the exceptions to credibility evidence (Cth)?

Answer 31

Credibility rule (CR) does not apply to evidence arising from answer in XX if evidence could substantively effect assessment of credibility of W: s103CEA.

Crim: s104 (in addition to s103): Acc cannot be XX on credibility unless crt gives leave; leave should not be granted unless evidence by Acc that goes to Pros W untruthful and is relevant mainly to the W credibility, i.e. does not incl evidence re events subj of pros: But

a. No leave for XX re bias, motive, recall or PIS.

4. Exception: rebutting denials by other evdence: CR does not apply to evidence relevant to W credibility & adduced by other evidence, if in XX substance of the inconsistent evidence (PIS) is put to W, and W denies or did not admit, and crt gives leave: s106 CEA
5. Exception: re-establishing credibility: CR does not apply to evidence in reX, or a PCS if, evidence of PIS admitted, or suggestion evidence fabricated, and leave granted for PCS: s108 CEA, s101 QEA

Question 32

Credibility of W admissible (QLD)?

Answer 32

Crt may refuse ques as to credit if it would not materially impari confidence of the W evidence: s20 QEA.

Re-establishing credibility: evidence allowed in reX, or a PCS if, evidence of PIS admitted, or suggestion evidence fabricated, and leave granted for PCS: s101 QEA

Question 33

Character evidence allowed (cth/crim)?

Answer 33

The hearsay, opinion, tendency and credibility rules do not apply to evidence to prove, or rebut Acc of good character, or (with leave s112 CEA) xx where raised by Acc: s110

[leave governed by s192 CEA = whenever crt grants leave, must consider the effect of the grant of leave on the case - leave can be given on the terms crt see fit]

Question 34

Is it an admission, and if so is it admissible?

Answer 34

Check: How is the statement/assertive conduct an admission? (how is it against interest?)

Admissions/confessions are admissible as exception to HR: s81 CEA, BUT
limited to fist hand hearsay: s82 CEA;

QLD: Formal Admissions:
Civil: by pleadings (rr165, 166,189 UCPR).
Crim: eg. guilty plea;
Informal Admissions: Confessions: direct and express oral or written admission of guilt by Acc (Doyle);]: BUT only if voluntary (McDermott)

Question 34

Exclusions on admissibility of admissions?

Answer 34

Exclusion at law: s84 CEA: influenced by violent, inhumane or degrading conduct (all proceedings); or s85 CEA: reliability (crim proceedings):

Exclusion by discretion:
s90 CEA: fairness to Acc (crim proceedings);
s130 QEA & CL fairness discretion, Swaffield; or
s138 CEA: improperly or illegally obtained evidence (this sec also applies to real evidence flowing from admission)(crim only); aka public policy discretion Swaffield.

Question 35

What is tendency evidence (Cth)?

Answer 35

Is a type of circumstantial evidence which supports an inference that, because the person had the relevant tendency, it is more likely that he/she acted in the way asserted or had the state of mind asserted.

Unlike coincidence evidence, no similarities in events are required: Hughes

Question 36

Is tendency evidence admissible (Cth)?

Answer 36

Evidence of character, reputation or conduct, or tendency that a person has/had, is not admissible unless: s97(1) CEA
1. Tendency notice filed and served: s97(1)(a) CEA;
2. Evidence has significant probative value: s97(1)
(b) CEA check with Hughes test;
a. Evaluate extent to which evidence proves
tendency; and
b. Evaluate extent evi makes FII morel likely:
i. Does not require similarity;
ii. Consider time-gap b/w misconduct,
unity b/w misconduct, specificity of the
tendency.
3. (If in crim by Pros) Admissible if probative value
substantially outweighs prejudicial effects:
s101(2) CEA (consider if jury direction might
mitigate prejudice)

Question 37

What is coincidence evidence?

Answer 37

Evidence that 2 or more events occurred to prove a person did a particular act, or had a state of mind, on the basis that having regard to the similarities in events/circumstances, it is improbable that the events occurred coincidentally: s98 CEA.

Question 38

Is coincidence evidence admissible?

Answer 38

Coincidence evidence is not admissible unless:

1. Coincidence notice filed and served: s98(1)(a);
2. Evidence has significant probative value s98(1)b)
   [assessed by ref to similarity in events and/or
   circumstances; consider weakening factors eg
   passage of time, dissimilarity, collusion];
3. (If in crim by Pros) Admissible if probative value
   substantially outweighs prejudicial effects:
   s101(2)
   (consider if jury direction might mitigate
   prejudice)