EA Flashcards
1
Q
CHAPTER 1 - PRELIMINARY PART 1.2 APPLICATION OF THIS ACT [ss 4–11]
A
- s 4(2): where sentencing follows a trial the provisions of the act should apply [Lewis].
- s 11: s 192 does not apply; - compare s 26.
- s 31 BA.
- s 94(2) EA.
2
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Division 2—Oaths and affirmations
A
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s 13:
- burden on the party arguing incompetence to establish this on the balance of probabilities [s 142].
- test is the wording in s 13(3) “is that the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence” [RJ].
- court must first find the witness incompetent [Brooks].
- failure to determine this or to give the instruction in s 13(5)(a) to (c) will invalidate the whole process and strict compliance is required [SH and MK].
- s 13(5)(a) to (c) direction must only be given [clearly explained] and does not have to be understood or acknowledged by the witness.
- competence must be determined “at the time of the adduction of evidence at trial and not in retrospect” [A2].
- s 189(1)(c) and (4).
- see cl 4(1)(b) of Dict.
- s 16: subject to s 192, whcih deals with the grant of leave and permits the court to give leave “on such terms as the court thinks fit”. When considering giving leave, direction or permission in all cases the court must take into account the matters prescribed by s 192(2), as well as matters relevant to the particular case [Stanoevski].
-
s 17:
- even if D consents or volunteers [Kirk, see s 190].
- ss 135-137, 165.
- see cl 4(1)(b) of Dict.
-
s 18:
- see of what he witness need to be aware of [Decision Restricted], essentially the elements of the sub-s (6) and (7) and that the court will decide.
- objection cannot be partial.
- “balancing test” in s 18(6)(b).
- ss 135-137.
- cl 10 and 11 of Dict.
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s 20:
- should be expressed in terms of a failure to provide an explanation and not the failure to give evidence as such [Azzopardi].
- should be made plain that it is a comment which the jury are free to disregard [Azzopardi].
- should be placed in its proper context by identifying the facts that are said to call for an explanation [Azzopardi].
- judge should remind the jury that the defendant is not bound to give evidence, that there may have been many reasons why he or she did not do so and the jury should not speculate about those reasons, and that the onus remains on the prosecution to prove guilt beyond reasonable doubt [Weissensteiner].
- adequate directions should also be given to the jury that the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution’s proofs and is not to be used as a make-weight [Azzopardi].
- where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led.” Such a direction should be given when “it is possible that the jury might think that evidence could have been, but was not, given or called by the accused” [Dyers].
- s 20(5) does not apply if tried for a different offence and judges comment would be designed to ameliorate the impact of any adverse comments made by the defendant.
3
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Division 3—General rules about giving evidence
A
- s 26: the making of and “order” under this provision requires consideration of the terms in s 192(2) [Rich].
-
s 29:
- “narrative form” may be more suitable to children, intellectually disabled, experts Aboriginals and Torres Strait Islanders [and unrepresented litigants [Isherwood].
- in criminal trials evidence should not be elicited in this way [i.e. narrative form] unless the defendant consents to the procedure pursuant to s 190 [Clarke].
- equirement for oral evidence should not be waived lightly especially if there is a disadvantage to the accused [Smith].
- subject to s 192 which permit the court to give a direction “on such terms as the court thinks fit”. “In all cases the court must take into account the maters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case” [Stanoevski].
-
s 32:
- s 192.
- court should first be satisfied that an attempt has been made to revive memory from it [Hinton].
- “fresh in his or her memory” means days and possibly weeks [Singh], however other authorities suggest “contemporaneity” and that event would not be “fresh” after more than 24 hours. In Roth it was open to grant leave in relation to a document made 5 years.
- not appropriate to grant leave where the cross examiner has asked the witness not to refer to the document [Hadid]
- s 122(6) client legal privilege with will be lost if used for the purposes of this section.
- s 33: “soon after the occurrence of the events” contemplates days rather than weeks [Orchard].
-
s 34:
- s 192.
- would not apply if established that the witness referred “in part at least” to a group of documents.
- s 122(6) client legal privilege with will be lost if used for the purposes of this section.
4
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Division 4 – Examination in chief and re-examination
A
-
s 37:
- if question had been asked and answered, asking the question again may amount to “leading” [R v S].
- s 37(1)(c) in a criminal trial “prosecution is not entitled to introduce evidence… by an impermissible course, by taking advantage that defence counsel man not object” [Hannes]
- s 37(3) r 31.4 of UCPR is an exmaple. In criminal trials evidence should not be elicited in accordance with s 37(3) in this way unless the defendant consents to this procedure pursuant to s 190 [Clark].
- no breach if the question is designed to clarify [S L J].
- in NSW the court can rule that the evidence is inadmissible if there is no retrospective leave, with the circumstances for leave being different to those when there is a contemporaneous objection [A2].
- warning may be necessary [Knowles].
- ss 135-138, 165, 190, 192.
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s 38:
- general cross examination is not permitted [Hogan].
- unfavourable does not mean “adverse”, but rather “not favourable” [Souleyman].
- unhelpful quality rather than neutral”, with “neutral” not being enough [Adam].
- “unfavourable to the party” means “unfavourable to the case which the party is seeking to advance” [Garrett].
- has nothing to do with “truthfulness” of the evidence [Hadgkiss].
- prior inconsistent statement will need to be proved [Yi].
- exclusion may be appropriate pursuant to s 135 instead of leave [Hawker].
- in granting leave XX may be restricted to particular matters. - notice should be given as a soon as possible, and, if not, this can be a factor when to be taken into account when granting leave [Ashton].
- in Le tried to flush heroin down toilet during police search. His girlfriend told the Police they were Le’s drugs - later she recanted and said they were hers (Le bought her a car), and gave evidence inconsistent with evidence given previously to the Police.
- s 165, 192, 192A
-
s 39:
- where an attack on credibility had been made, evidence may be elicited with leave of the court in re-examination even though this cannot be described as arising out of cross examination, as it arises out of the nature of cross examination.For example, an allegation of invention of testimony will permit evidence of an earlier consistent statement to be adduced in re-examination pursuant to s 108(3)(b).
- s 192.
5
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Division 5—Cross-examination
A
-
s 41:
- madatory.
- may rely on ss 11 and 26.
- ross examination can be robust, but it must be fair and does not amount to a license to offend, ridicule or vilify [Lets Go Adventures Pty Ltd]. Effective cross examination may involve a form of harassment and cause embarrassment, with the important consideration being the probative value [Lets Go Adventures Pty Ltd].
- In Libke Heydon J discussed a number of “improper” questions, which include (a) compound questions; (b) questions relating to controversial assumptions; (c) argumentative questions; (d) comments; and (e) cutting off answers before they are completed.
- prosecutor being subject to additional constraints [Whitehorn].
- s 294A and 306ZL CPA.
-
s 44:
- no leave necessary [R v S].
- s 26 - court suprevising questioning.
-
s 46:
- overlaps the common law rule of fairness in Browne v Dunn that is if it is intended to adduce evidence to the contrary to a witnesses testimony as part of his or her argument, that version of events [substance] must be put to the witness during cross examination. Requirement that the opponent put the substance of the case to the witness [i.e. contrary evidence or assertion should have been put to the witnesses].
- party must give appropriate notice to the other party and any of the person’s witness of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case or a party’s or a witnesses’ credit [MWJ].
- narrower in criminal matters, because of prosecutor’s duties [MWJ].
- no breach if the matter in respect of which there was no cross examination is not in issue in the proceedings [Director, Office of the Fair Work Building Industry Inspectorate].
-
consequences:
- recalling the witness [MWJ].
- re-open its case to lead evidence to rebut t or corroborate.
- XX of party in breach.
- limiting use [i.e. not challenege truthfulness].
- exclusion [O’Gara].
- drawing of adverse inferences [Birks].
- taking acccount of breach in applicatgion to refuse or recall.
- discharge jury if incurrable.
- jury directions.
- ervice of pleadings/particulars, contrary witness statements may provide sufficient notice, XX that covers everything may be impractical ot oppresive.
- s 192 - also take into account practical problems such as securing re-attendance.
6
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Part 2.2 – Documents
A
-
s 48:
- does not have to be exact copy - sufficient that the document “purports” to be a copy which “purports” to have been produced by such a device [Calleja].
- i s 48(4) requires that a document “is a copy of”, being a fact that would have to be proved on the balance of probabilities in accordance with s 142.
- word “or” in initial part of s 48(1) may mean if original is tendered (such as tape recording) other evidence could not be [Georgiou],
- CCTV footage is a document [Wade]
- s 48(1)(a): a party may be cross examined to obtain an admission [Alchin].
- s 48(1)(c) and (d): sufficient is the document purports to be and if there is doubt as to whether the transcript is accurate or indistinct it can be admitted as an aide memoire to assist jury’s perceptioa and understanding [Eastman].
- transcript use may be rejected or use limited under s 135 or 137.
- s48(1)(c) would not apply where a translation of the words contained in the audio tape take place in order to prepare a transcript, as it would be caught by the opinion rule in s 76, which must be rendered inapplicable pursuant to s 78 or s 70 or waived under s 190.
- the fact that it was a copy of a copy of a copy did not prevent it being a copy for the purposes of this section [Lewis], it had however, been proved in Lewis that the original computer was not available on a balance of probabilities under s 142.
- ss 171-173, 181, 186.
-
s 50: 3 matters to be considered:
- must be summaries rather than comprising conclusions or statements of opinion the fact that a summary may involve some opinion does not mean the section cannot be invoked, but there will be a point where it will not be a true summary [Botany Bay City Council]
- volume and complexity is such that it is not possible to examine the evidence;
- reasonable opportunity given to the other party to examine the documents in question.
7
Q
CHAPTER 2 ADDUCING EVIDENCE [ss 12–54]
Part 2.3—Other evidence
A
-
s 53:
- does not deal with admissibility of experiment conducted out of court [Evans] [i.e. such as defendant providing a sample fo handwriting].
- “inspection” is an out of court examination of land or chattels too big to be brought into court.
- “demonstration” is like an inspection incorporating an explanation by a witness of the incident in question or a demonstration of the machine or object in operation.
- “experiment” is a test or trial or tentative procedure for the purpose of discovering something or testing a principle or hypothesis.
- s 192.
-
s 54:
- s 53 does not apply to what happens in the courtroom [i.e. in-court demonstrations] [Evans], such are governed by s 55 and ss 135 and 137.
8
Q
Chapter 3—Admissibility of evidence
A
-
s 55:
- minimal logical connection between the evidence and the facts in issue
- does not need to make a fact “probable”, just more or less probable than it would be without the evidence
- indirect connection sufficient [i.e. supports inference that did have that intention]
- facts in issue emerge from pleadings (civil case) and elements of the offence (criminal).
- some times a question of mixed fact and law.
- necessary to point to a process of reasoning by which the information in question could affect the assessment of probability of the existence of fact in issue [Washer].
- may may be so i_nherently incredible, fanciful or preposterous_ that it could not be accepted by a rational jury = effect on probability of existence of fact in issue will be nil and it would not be relevant [IMM].
- questions of relevance do not require discretion, as evidence is either relevant or it is not [Smith compare Papakosmas].
- in Jackson the representation was so ambiguous that it could not rationally ot rationally affect the assessment of probability of a fact in issue.
- elevance does not depend on its capacity by itself to prove anything and assessment of probabilities must be made in context of other evidence either admitted or subsequently adduced [Evans] = s 57 may be utilised which permits provisional findings of relevance.
- evidence that a person has made certain allegations may be relevant to prove the truth of the allegations (hearsay use) but may also be relevant if the person subsequently testifies, to their credibility as a witness (supporting credibility if the out-of-court allegations are consistent with the in-court testimony; and diminishing credibility if inconsistent).
- ss: 59, 76, 89, 91, 97, 98, evidence that is relevant for more than one use might only be admissible for one of those uses.
-
s 56:
- identify the purpose for which the evidence is tendered [IMM].
- “evidence is not relevant, no further question arises about its admissibility, as irrelevant evidence may not be received” [Smith - where police officers were in no better position to make a comparison compared to jury. May be different if the defendant’s appearance at trial differs in some significant way from time of the crime, e.g. had a beard then, doesn’t now or distinctive feature not available to jury. In Smith witness’s assertion of identity was founded on material no different from the material available to the jury. However, Kirby J: indirectly relevant as police had seen the accused in various guises, in daylight, and from various angles, and were in a better position to assess if he was the person in the photos, but excluded under s 76].
- determine the issues at trial/criminal trial, the ultimate issues are the elements of the offence.
- for the party tendering the evidence to make clear to the court the purpose for which evidence is tendered and how it becomes relevant and admissible [Jones Lang LaSalle (NSW) Pty Ltd].
- objection should be ruled on as soon as possible with ruling given immediately [Dasreef].
- Evans - wear balaclava and sunglasses during XX for purpose of comparing to person in footage, also asked to speak “give me the serious cash” and walk around in front of jury. Judges thought that if attired in a balaclava, and he had looked very different to the description given by eyewitnesses, that would have been material capable of raising a reasonable doubt. lf he had looked similar it would, taken with other evidence, have been capable of supporting a conclusion of identity, but found inadmissible.
-
s 57:
- i.e. authorship, identity, accuracy.
- judge may receive the evidence conditionally upon the assurance of the party that the other information will be properly tendered.
- evidence is provisionally relevant where the relevance of any particular piece in the jigsaw cannot be determined conclusively until the court has completed the jigsaw [Nodnara Pty Ltd]
-
s 58:
- authenticity distinguished from relevance = an evidentiary basis for finding that it is what it purports to be [Rusu].
- Rusu is plaintly wrong court may draw reasonable inferences from a document for the purposes of determining that the authenticity of the document may reasonably be inferred. The question for the tribunal of law is not whether the document is authentic, but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact [i.e. relevant to a fact in issue]. [ACCC v Air NZ]. This issue not raised in Calleja.
- Rusu was wrongly decided and ACCC v Air NZ is correct no reason in principle that to the extent necessary, the authenticity of a document cannot be determined from the terms of the document itself [Gregg].
- s 58 does not deal with the drawing of inferences from the object or document in order to establish some other precondition to admissibility, but only relevance [other inference can be drawn from s 183]
9
Q
Part 3.2—Hearsay
Division 1—The hearsay rule
A
-
s 59:
- statements and conduct [Lee], but inference from conduct may involve opinion.
- does not apply to machine generated information where there is no relevant human input.
- not caught by the hearsay rule if it is not adduced to prove the facts asserted, but adduced for some other purpose.
- careful directions will be needed as to how it can and cannot be used.
-
approach to s 59:
- identify the previous representation
- what is the intended asserted fact
- s the previous representation being adduced to prove that asserted fact.
-
s 60:
- second-hand and more remote hearsay.
- s 60 will never apply to admissions in criminal proceedings (but s 81 will).
- has to be admitted for another purpose.
- purpose does not mean subjective purpose [Adam].
- purpose determined by the use the evidence, if admitted, will be put, as objectively ascertained.
- if a party wishes to rely on this exception to the hearsay rule, this should be made clear and a ruling should be obtained that evidence may be used for a hearsay purpose [Ghebrat].
- exmaple: PCS or PIS used to attack credability and then used to prove what was asserted by that statement [subject to s 60(3)].
- if requested a judge is required to warn the jury that the hearsay evidence is unreliable under s 165(1)(a) [Lozano].
- ruling or a concession from the other party not to use the evidence for a hearsay purpose a direction may be necessary to the jury to what use evidence may be put [Christian]
10
Q
Part 3.2—Hearsay
Division 2—“First-hand” hearsay
A
-
s 62:
- ordinary meaning of “perceive” is “to observe by one of the five senses of sight, hearing, smell, taste or touch” and this is clearly the meaning of “personal knowledge of fact” [Jackson].
-
s 63:
- refusal, not withstanding contempt, to give evidence is one who is “unavailable” [Suteski].
- mental condition is such that will suffer significant mental adverse consequences if he/she testifies [Nona].
- s 18 may satisify non-availability.
- ss 67, 167.
-
s 64:
- “unwarranted expense and delay” to call 6 witnesses when to give evidence orally when a transcript of their earlier evidence was available [Franklin].
- alternatives [i.e. video link].
- not apply where the person had testified but not given any evidence about the representation and the representation was then tendered in a document [Osbourne].
- hearsay rule does not apply to other representations sought to be used for the purpose of understanding the previous representation admitted [s 60], but they can be used for hearsay purpose.
-
s 65:
- s 65(2)(b): must be a temporal connection between occurrence of the act and the making of representation [Azizi]. “Shortly after” is flexible and the consideration include the subject matter of event and how long the memory of such event is likely to remain clear in mind [Mankotia]. Statement made 24 hours after the incident was made “shortly after” [Harris]. Party seeking admission will have to point to circumstances which make which make it unlikely that the representation is a fabrication, but it is not sufficient to point to absence of circumstances [Williams].
- s 65(2)(c): system of work that was well remembered [Munro].
- s 65(2)(d): objective and to be determined in context and circustances [Suteski]. Focus must be on the particular representation with circumstances in which the representation was made [Sio].
- 65(8) and (9): the defendant in criminal proceedings does not have to comply with the more stringent tests in (2)(a) to (d).
- s 86, 283F, 284 -289 CPA.
-
s 66:
- no requirement that the person have any memory at the time of proceeding [Singh].
- nature of the events remembered” is the critical factor [LMD].
- nature of the abuse may be such that it may remain fresh in the memory for many years [Bauer].
- test for “fresh in the memory” should be approached on the assumption that the complainant was truthful with ambiguity and inconsistency suggesting unreliability being extraneous [Bauer].
- s 66(3): may, however, be used to refresh memory or be admissible under credibility provisions [Esposito].
- s 289I, 294CA, 306B, 306I, 306V, 306I CPA
- s 142 EA.
-
s 66A:
- example being evidence of fears expressed by a murdered wife about husband’s violence and her intention to leave him [Boral Resources (Vic) Pty Ltd] [i.e. “I am afraid that he will kill me.”].
- does not mean that evidence can be adduced of representation made by a person that he believed that some event had occurred or remembered that some event had occurred and used to prove the occurrence of the event, as it would evade the operation of the hearsay rule [Hannes].
-
s 67:
- notice 5 minutes before is not reasonable: [Puchalski].
- may have to be argued that had it been given there would have been changes in conduct [Singh]. f admission will result in incurable unfairness and injustice as well disrupt and compromise the proper conduct of trial a direction under s 67(4) may not be given as a different approach may well have been taken and could not be offset by a direction [Azizi].
- identifying a lengthy document within which the representation may be found without identifying the representation and the relevant part of the document will not suffice [ACCC v CC].
11
Q
Part 3.2—Hearsay
Division 3—Other exceptions to the hearsay rule
A
-
s 69:
- representation has to be recorded in the course of the business for the purpose of the business.
- requires a tracing exercise. “Directly” or “indirectly” embraces remoteness beyond second hand hearsay [Lancaster]. No need to identify the person who made the representation or person with personal knowledge [Lin], however, failure to do so may mean that who ever it was “might reasonably be supposed to” to have the necessary knowledge [HP Marcantile Pty Ltd].
- s 69(3): proceedings must be likely or reasonably probable [Nikolaidis]. Criminal proceedings in s 69(3)(b) need not be in existence at the time and indeed need never in fact commence, however, the investigation must be extant [Averkin].
- court does not have to be satisfied the person who made the representation had personal knowledge of the asserted fact it is enough that he or she “might reasonably be supposed” to have such knowledge and inferences can be drawn not just from document but from information contained in it [Rickard Constructions Pty Ltd].
- in Jackson s 69(2)(a) did not apply because the ambulance officers (makers of the representation) did not have personal knowledge of a fall of 1.5 metres, because it happened before they arrived. Even if the ambulance officers (makers of the representation) had been told by the bystanders that Jackson fell in that way, the bystanders did not have personal knowledge of a fall and could not reasonably be supposed to have such knowledge, because it happened before they arrived as well.
- “asserted fact’ at least applies to lay opinions” [ACCC v Air NZ (No 1)]. For example, a building site log recording that the site is ‘slippery due to rain’; a hotel incident report that a patron was ‘drunk’; a police pocket note that a person was ‘angry’. An expert auditor’s report about the financial position of the company may fall within this exception [Ringow Pty Ltd].
- perceive” is “to observe by one of the five senses of sight, hearing, smell, taste or touch”, which is the meaning within “personal knowledge of a fact” [Jackson].
- ss 166-169 do not demand that admissibility under s 69 can only be affected after procedure which those sections impose has been undertaken.
- s 69(3) should be construed as an exception to s 69(2) and the person who opposed admissibility bore the onus to show that exception was made out [Rickard Constructions Pty Ltd].
-
s 73:
- in Cvetkovic it was said that the belief must be held by more than one person before it is given the status of “reputation”.
- s73(1)(d) is directed to evidence of fact of a relationship and not its quality [Mrish].
- “Family history” encompasses date and place of birth, date and place of marriage, date and place of cohabitation and place of work of ancestors of witness etc [Ceedive].
-
s 75:
- must identify the particular source who is likely to have knowledge of relevant fact, but does not require the “ultimate source” [Vu].
- nature of proceedings by reference to the type of relief sought [i.e. final] [Allstate Life Insurance Co].
- dimissal vs summary judgment, but not dimissal on merits.
- s 70(1)(a) of CPA 2005 provides that a court may dispense with rules of evidence for proving any matter that is not bona fide in dispute. - s 9(2)(c) can, also, be utilised to dispense with the requirement of source [Broke Hills Estate Pty Ltd].
- Interlocutory, because the parties contemplate they may be before the same court again when a decision will be made [Allstate Life Insurance Co].
12
Q
Part 3.3—Opinion
A
-
s 76:
- ”opinion” – an inference drawn or to be drawn from observed and communicable data [Allstate Life Insurance Co reaffirmed in Honeysett].
- must be satisfied on the balance of probabilities that a particular inference is being, or has been, drawn [Jackson].
- arrive at or form a conclusion or make a judgement by a process of reasoning from the facts observed [Hodgson] [i.e. not a summary or conclusion wirthout drawing of infrerences].
- evidence of what the person would have doen in a hypothetical situation is not opinion [Allstate Life Insurance Co].
- if not adduced to prove the existence of fact about which the opinion was expressed it does not apply and careful direction to the jury may be necessary of how it can and cannot be used.
- s 281, 289I, 306V CPA.
-
s 78:
- “opinions” as to identity of individuals, age of person or the speed at which something was moving, whether someone was under the influence.
- statement of lay opinion in a business record, which is admissible under s 69, still must comply with the opinion rule [ACCC v Air New Zealand Ltd].
- in Jackson written statement was so ambiguous that it had no probative value: it supported neither the theory of a fall from the vertical head wall nor the theory of a fall from one of the sides, and for that reason did not satisfy s 55(1). It was not lay opinion because for s 78(a) it must be possible to extract from the form of what the person stating the opinion said (construed in context) that the opinion is about a ‘matter or event and that it is “based” on what the person stating the opinion saw, heard or otherwise perceived’ about the matter or event.
- s 78 is to permit the reception of an opinion where ‘the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated [Jackson][amblance officers were not called and if called may have been different].
-
s 79:
-
must establish mandatory requirements on the balance of probabilities:
- person has “specialised knowledge”;
- specialised knowledge is based on the person’s training study or experience;
- opinion is “wholly or substantially” based on that knowledge [Harrington-Smith 3 stage test rather than 2 as in Dareef and Honeysett, but essentially the same]
- has to be “knowledge” rather than just “belief” or speculation and it must be “specialised”, rather than generally held in the community. Person without formal qualification may acquire this knowledge [Honeysett].
- “Knowledge” means “acquittance with facts, truths, or principles” as from study and investigation [Honeysett].
- reference to Daubert [US authority] in Honeysett suggest requirement for validation of supposed knowledge. However, in Tuite it was noted that there was no room in s 79 for a test of evidentiary reliability as a condition of admissibility, where the “good grounds” requirement was adopted without explaining what it entailed.
- must differentiate between the assumed facts upon which the opinion is based and the opinion in question and the wittiness must identify the expertise he could bring to bear with the reasoning process be exposed or made transparent [HG and Honeysett].
- lack of reasoning may point to lack of any sufficient connection between the opinion and the specialised knowledge [Dasreef].
- in Honeysett held that his opinion was not based on his knowledge of anatomy, but just on his observations of the tape, dressed up in scientific language. The jury could have ascertained these facts themselves (remember Smith].
- in Dasreef:
- must identify why the evidence is relevant.
- opinion must be presented in a form that makes it possible to tell whether it is based on specialised knowledge.
- must explain how the field of specialised knowledge applies to the facts assumed or observed so as to produce the opinion propounded [Makita at [37] [i.e. reasoning process exposed].
- “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered [Makita].
-
basis rule: common law required you to prove the assumed facts and other facts relied upon by the opinion, otherwise the opinion would be inadmissible:
- Dareef reject the continuing operation of the “basis rule”, but obitter.
- Haydon J [only, but should do it to avoid problems]:
- expert must disclose facts and assumptions that the opinion is based upon “assumption identification rule”;
- acts and assumptions must be proved for the opinion to be admissible “basis rule”;
- facts and assumptions must be related to the opinion “statement of reasoning rule”.
- proof of assumption rule, not abolished by Act. Failure to comply with rule makes opinion irrelevant [however see s 57].
- the facts on which the opinion is based should be identified, the reasoning process leading to the formation of the opinion must be exposed [Ocean Marine Mutual Insurance Assn (Europe) OV emphasised in Makita at [85]]
- Makita has been qualified, nonetheless, the proposition that the reasoning process must usually be demonstrated so that the court can be satisfied that the opinion is based wholly or substantially on the expert’s specialised knowledge and is not bare “ipse dixit” has been repetidly affirmed [Hevi Lift (PNG) Ltd].
- proposition in Makita that facts ought to be proved in not good.
- a number of cases following Dasreef that adopt the basis rule as a requirement, not a requirement and a matter of weight. There are conflicting view [see Nicholls]. See also Kyluk and Fuller.
- lack of proof of underlying asussmptions go to weight.
-
reliability?:
- no room, unless based on new science o establish that the underlying science is sufficiently reliable to be admitted in a court of law [Tuite], however, this may no longer be appropriate in light of IMM.
- authorities suggest that failure to comply with the code will not render an opinion inadmissible [Wood].
- if the basis of opinion is in hearsay form it is not caught by s 59, as it is not adduced to prove the existence of the facts asserted by representation and is relevant and admissible to explain the assumptions on which the opinion is based and can later be used pursuant to s 60 to be used to prove existence of asserted facts subject to s 136 [Harrington Smith].
- s 183 does dispense with matters in s 79 [Ocean Marine Mutual Insurance Assn (Europe) OV].
- expert evidence generally requires careful direction so that jury can assess and apply properly.
-
must establish mandatory requirements on the balance of probabilities:
-
s 80:
- ultimate issue determined by substantive law and pleadings [i.e. was D negligent].
- if tribunal is in a good position to make the relevant determination without expert assistance, the risk that it will unnecessarily defer to expert opinion supports the view that such evidence should be excluded due to its probative value being outweighed by the danger that the evidence might cause or result in undue waste of time [Smith].
13
Q
Part 3.4 Admissions
A
-
s 81:
- any acknowledgement of some relevant fact that tends to establish guilt or liability.
- may be inferred from conduct such as running away or destroying docuements. [Knight].
- may be an implied admission, in that a lie may be capable of revealing consciousness of guilt of a charged offence and regarded as admission [Esposito].
- evasive answering questions [Horton].
- statement which is exculpatory on its face is not a representation which is adverse and need to look at circustances [R v GH].
- must be adverse to the party’s interest in the outcome of proceeding rather than at the time it is made [Rahme].
- lack of consent for identification parade or consent for search are not admissions [Leonard]
- s 281 CPA.
- standard of proof for finding “that a particular person made the admission” is the prima-facie standard (that is, the court “is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission”).
- personal knowledge or belief in the fact admitted is not required [Hoy Mobile Pty Ltd].
- representations that are not adverse are not admissible under s 81, but may be admitted under s 64(3) or 66(2) if the person has been called or is called to give evidence or may be admissible under s 108.
- duty on the prosecution as a matter of fairness to tender evidence of largely exculpatory statements [Singh].
- see def of “representations in documents”.
- s 82: document containing a previous representation by X that D had made the admission would not be protected by s 81 from application of the hearsay rule as it is not a document in which admissions are made but are recorded [Daniel].
-
s 84:
- not limited to physical conduct and can encompass mental and psychological pressure [Higgins].
- significant level of impropriety required [R v JF]. Prosecution will have to demonstrate that the conduct had no casual effect on making the admission. Reliability of admission is not relevant [R v JF] and it is not concerned whether the truth of the admission was affected [Deacon]. There must be some evidence [Habib].
- once s 84(1) conduct is identified, the onus is on the respondent to establish that the conduct did not occur or if it did, it did not influence the admission [Habib].
- “must” - mandatory rejection.
-
s 85:
- could be investigating any offence and does not have to be performing functions in connection with the offence for which the defendant is subsequently charged.
- linkage to the “investigation” of an offence and if a function is performed unrelated to or not connected with the investigation of an offence this provision will not apply [Naa].
- s 85(2): “the circumstances of and surrounding the admission” not the general circumstances of the evens said to form part of the offence [Rooke]. The question is not whether the circumstances did in fact adversely affect the truth, but rather whether they were likely to do so.
- actual truth of admission should not be considered unless raised by the defendant pursuant to s 189(3).
- the defence has to discharge its burden on the balance of probabilities [Cook] and then the prosecution bears the onus under s 85(2).
-
s 86:
- where there is no acknowledgement an official will only be permitted to testify as to admissions using the documentary record for the purposes of refreshing memory.
- where such documentary evidence is admissible pursuant to other legislation the effect of s 8 is that s 86 will not apply, but s 86 is in addtion to s 281.
-
s 87:
- does not override the discretionary exclusion pursuant to s 135 even though it states the court “is to admit the representation” [Ignot Capital Investments Pty Ltd].
- refers to authority to make “statements” and not “admissions” [i.e. solicitor acting on behalf of a client].
- representation made by a person in furtherance of a common purpose extraneous to the proceedings will or may not pass the “relevance” test [May].
- “Reasonably open to find” excludes the civil standard [see s 142 and TCN Channel 9 Pty Ltd].
- all that is required is that it is “reasonably open”.
-
89:
- in relation to whom the inference from silence is sought to be drawn does not have to be the defendant, because to do so would be unfavourable to the defendant [Jones].
- can legitimately be used in another way, it will be admissible for that use under s 89(2), subject to discretionary exclusions [i.e. a refusal to answer questions may be relevant to the defendant’s state of mind when making admissions or adducing the evidence to demonstrate that the defendant was given an opportunity to respond to allegations against him or her or another purpose such as that the police conducted an investigation].
-
s 89A
- s 21 of the Interpretation Act 1987 defines “serious indictable offence” to mean an “indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”.
- it is for the judge to determine what inference would be rationally open to be drawn even in a proceedings with a jury with the availability of other influences to be considered on a void dire.
- in Hogg, the true reason for the defendant’s silence was that he relied on legal advice not to talk and it was for the crown to establish that the true reason for his silence was not because he had been advised to do so.
- s 142 does not directly apply as s 89A is not directly concerned whether evidence “should be admitted or not admitted”, but rather whether a particular inference should be drawn from evidence. However, likely the courts will apply “balance of probabilities” test.
- nus is on the prosecution to establish 89A(2)(a) and (b), 89A(4), 89A(2)(c), 89A(2)(d), and 89A(5)(a). - s 89A(1) requirements are matters for the jury to be satisfied.
-
s 90:
- Gleeson CJ and Heydon J:
- police impropriety, illegality, and the reliability of the admission are relevant factors to the exercise of the discretion [Em].
- s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning and likely to be fact specific.
- Gummow and Hayne JJ:
- requires examination of the circumstances of the making of the admission and whether they would effect the fairness of use of the evidence at trial (not fairness at the time at which the representation was made) [Em].
- ‘safety net’ provision after other provisions have been exhausted [Em].
- factors considered for other exclusions should not be considered when applying s 90, as it is essentially the last cab in the rank [Em].
- discretion under s 90 will fall to be considered only after applying the other, more specific, provisions of the EA [i.e. 84, 85 and 138], with questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities are not to be dealt with under s 90 [Em].
- s 90 is affected by the operation of the other sections in the EA and should not engage with the factors engaged with those sections.
- the questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90 [Em].
- s 90 is not to be considered where other sections could be enlivened. In other words the matters dealt with by other sections – voluntariness, reliability are not matters to be considered when assessing “fairness” under s 90.
- reliability should not be a factor, as that is dealt with in s 85, unless representation was not made during formal questioning [Em].
-
example:
- if the conduct is improper, but on the balancing test in s 138, it is allowed in, according to the Hayne/Gummow approach, you cannot seek to rely upon s 90. But if the conduct was not improper, s 138 is not enlivened and so you can test s 90.
- If the admission made as a result of questioning is potentially unreliable (and s 85 otherwise applies), but the Court finds that it is not, then you cannot seek to rely upon s 90. But if the questioning was not conducted by an investigating official, s 85 is not enlivened (even though the admission is unreliable), so you can rely upon s 90.
-
Thus:
- Gleeson CJ and Heydon J: allowed for a more expansive formulation of s 90 in the sense that matters considered under other provisions of the Evidence Act can inform or predicate unfairness.
- Gummow and Hayne JJ: appear to have construed s 90 as a “last resort” or safety net provision. That is, the identified unfairness can not be one that enlivens the consideration of another exclusionary Power, albeit unsuccessfully.
- Kirby J actually found unfairness in these circumstances.
- pursuant to the Gleeson/Heydon approach, if appeal to these sections is unavailing, these issues could still be considered under s 90 and under Hayne/Gymmow it cannot be.
- both arguments supported in subsequent decisions but Gleeson/Heydon view is favoured in that:
- s 90 may be relied on as an alternative to reliance on any of the other specified sections; and
- the interpretation of s 90 is not affected by the more particular or specific provisions of the EA.
- s 11.
- on defence to demonstrat is it unfair.
- Gleeson CJ and Heydon J:
14
Q
Part 3.5—Evidence of judgments and convictions
A
-
s 91
- evidence can still be relevant and admitted for another purpose (but s 60 will not thereby make it admissible to prove the truth of the facts).
- merely prevents the judgments from being tendered for the purpose of proving the existence of those facts [Ainsworth], but not to establish the terms of a judgement and its effect [Crawley].
15
Q
Part 3.6—Tendency and coincidence
A
- s 29A CPA.
-
s 94:
- “fact in issue” is the “ultimate issue” [Allam].
- s 94(5): contamination, concoction or collusion generally only goes to the credibility and reliability of tendency evidence and is therefore an assessment that must be left to the jury [Bauer].
-
s 95:
- even if the evidence is admitted for another purpose, if you want to adduce it for a tendency or coincidence purpose, you must comply with this part [s 60 does not apply].
- if admitted for another purpose may need to warn the jury not to engage in tendency or conicidence reasoning.
- clear articulation of the relevance as to demonstrate that it does not involve tendency reasoning [RG].
- greater risk jury will use for another purpose = stronger case for exlcusion [L’Estrange].
-
s 97:
- the same evidence, admitted to prove something else, is not tendency evidence. need to decide what purpose or use is sought to be made of the evidence. Question is really whether some propensity is what is being sought to be proved. A tendency to act in a manner relevant to the crime, such as use of violence, is sufficient to be described as tendency evidence.
- question is whether the evidence establishes the propensity of the relevant person to act in a particular way [Jacara Pty Ltd]. In order to avoid application of the provision it is not sufficient to assert that the evidence is relevant to prove something other than “tendency”, such as a “system” or “habit”, but to demonstrate that the evidence is relevant to a fact in issue by a process of reasoning which does not involve the drawing of an inference from evidence of “tendency” to conform in behaviour [Jacara Pty Ltd].
- SPV:
- likely to be a high degree of probative value where:
(a) the evidence, alone or in combination with with other evidence, strongly supports proof of a tendency, and
(b) the tendency itself strongly supports the proof of a fact that makes up the offence charged. [Huges]- more than mere relevance but something less than substantial degree of relevance [Lockyer]. Significant defined as “important” or “of consequence” [Lockyer].
- must depend upon the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood the evidence must be influential in the context of fact- finding.” [IMM].
- cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred” [Jacara Pty Ltd].
- extent to which the evidence supports the tendency. Will have SPV if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.” [Hughes]
- extent to which the tendency makes more likely the facts making up the charged offence [Hughes].
- focus must be on the strength of the inference that can be drawn from the conduct to the tendency [Hughes] and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur [Jakara Pty Ltd]. This is for the court by application of logic and human experience as are used in the assessment of relevance [Hughes]. Not necessary that the disputed evidence have that effect by itself and may be reinforced by other evidence [Hughes]. Consider each count separately when there are multiple counts [Hughes]. in Hughes applying the 2 inquiries mentioned at [41], the majority held that the evidence, when considered together, ‘provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection’ (at [62]), and that this tendency made more likely the elements of the offence charged (at [64]). Odgers argues that this case means that: it is not enough to show that the defendant has acted in a certain way in the past in relation to another person - The mere fact of committing an offence against another person is not necessarily enough. Therefore – mere propensity not enough? There needs to something which distinguishes the conduct. Here it was that the defendant was prepared to bear the high risk of detection. [57] So there must be some linking feature between the two acts? This is supported in McPhillamy.
- in Bauer: Affirmed IMM: “The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. May of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.” may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.” SO: 1. contrary to IMM, evidence of uncharged acts given by the complainant can have SPV, even if they do not have a “special feature”. 2. Distinguishes IMM at [55] and Hughes at [56]. 3. This means that evidence of the complainant of a previous uncharged act can have SPV. “… where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. … evidence that an accused has committed one sexual offence against a complainant … suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents.”
- assessment of probative value must proceed on the assumption that evidence is accepted [and thus is to be regarded as credible and reliable] just as required when assessing relevance under s 55 [IMM].
- IMM approach of complainant’s evidence of an uncharged act is not enough for SPV without “special features”, was resiled from in Bauer.
- in Hughes contrary to the VSCA’s approach in Velkoski of assessing the probative value of tendency evidence by looking to similarity of ‘operative features’ of the acts proving the tendency, the majority held that ‘a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.’ Ultimately, the probative value will depend on the factual issue the tendency evidence is being used to prove, and different considerations may be important where the fact in issue is the occurrence of the offence itself. For example, if the issue is the offender for a known offence, then close similarity is likely to be a requirement. But in other circumstances, different considerations may apply. that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’, noting only that it is not necessary that the disputed evidence has this effect ‘by itself‘ That assessment in turn requires first, considering the extent to which the evidence supports the tendency, and, secondly, ‘the extent to which the tendency makes more likely the facts making up the charged offence’. SO: 1. Consider the extent to which the evidence supports the tendency; and 2. Consider the extent to which the tendency makes more likely the facts making up the charged offence.
- requires the ‘application of the same well-known principles of logic and human experience’ also used to assess the relevance of evidence.
- a tendency expressed at a level of particularity rather than generality will be more likely to be significant [Hughes]. Must be some feature for example that link the 2 co-offending together [Bauer]. in Hughes the factor was that he was prepared to engage in conduct when there was a high risk of detection). “…there must ordinarily be some feature of or about the offending which links the two together”. But if the propensity is unusual, shouldn’t that be enough? In Bauer: “More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
- tendency evidence that reveals a pattern of conduct or a modus operandi may support a conclusion that evidence has significant probative value [Hughes].
- nature of tendency
- number of occasions
- time gap
- degree of specificity or generality
- degree of similarity between conduct
- degree on similarity of circumstances
- patern of conduct or modus operandi [most powerful “signuture nature”]
- the issue
- nature of proceedings
- whether evidence is disputed
- evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.” [IMM].
- issue of “fairness” to the accused is addressed by s 101(2) and is not a material consideration for the purposes of this provision.
- r 5 ER.
- s 97(2)(b) - SP requirement still applies. Onus is on the party seeking to admit evidence
-
s 98:
- 2 or more events have occurred in circumstances where the conduct is ambiguous - similarity of the events can be used to argue that it is unlikely the events occurred accidentally or coincidentally and that they were, in fact, the result of criminal actions.
- where there is evidence that 2 or more similar allegations were made in circumstances where it is implausible that two or more complainants have independently come forward to make similar yet false allegations [i.e. conclusion in that they are telling the truth].
- i.e. reasoning that it is improbable that the events occurred coincidentally.
-
PV:
- proceed on the assumption evidence is accepted [thus to be regarded as credible and reliable] [IMM].
- level of similarity between the two or more events circumstances in which they occurred is something that the court will consider when looking at the probative value of the evidence.
- existence of “similarity” is not essential to tendency reasoning, while it will always be a necessary requirement coincidence evidence.
- “striking” similarities are needed to have significant probative value, but not always the case [i.e. using a particular technique to break in etc [Ellis], however, see Davies accused presence in the vicinity of fires was not an “innocent coincidence” and did not require “striking similarity”.
- r 6 ER for notice. See Zhang as to what a properly drafted notice ought to identify. FCR O 33, Rule 19 requires it to be given on Form 147.
- Improbability of coincidence may make it more probable that the accounts given are more true despite lack of similarities.
- the greater the number of complaints the less distinctive or similar the evidence needs to be to satisfy coincidence reasoning [Page].
- s 98(2): still SPV requirement and “adduced” means “admitted”.
- s 99: rr 5 and 6 ER.
- s 100: will consider the probative value of the evidence and any prejudice caused [Harker]. Even if no objection is raised will still be refused [Bryant].
-
s 101:
- used to say substantially outweighs now just outweighs.
- adduced means “tendered”.
- in addition to SPV must outweigh. Higher threshold than 135 and 137.
- evidence which is neither tendency or coincidence may be admitted subject to discretions in ss 135 and 137 with s 95.
-
outweigh:
- balancing exercise which can only be conducted on the facts of each case and the court must give “consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh [Ellis].
- same as “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137 and conveys harm to the interests of the accused by reason of risk that the jury will use the evidence improperly in some way [Bauer]. Varies from case to case and usually where the evidence if given “disproportionate weight” [Hughes].
- If admitted under s 101, there would be no basis to exclude it under s 137 [Bauer].
- long delay since some of the tendency events was such that caused a “forensic disadvantage” [Bauer], but Longman direction given.
- The risk of collusion or contamination goes to reliability and therefore should not be considered unless the risk is so great that “… it would not be open to the jury rationally to accept the evidence…”[Bauer].
- “the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.”
- this appears to mean that you can consider competing inferences in determining whether the evidence meets the test for relevance.
- onus is on the prosecution [s 142]. - may be necessary to direct the jury how the evidence that has been admitted but may not be used against the defendant may or may not be used [i.e. not to engage in coincidence reasoning [El-Azzi]
