CTH - Evidence Act

Question 1

CTH - Who is a compellable and component to give evidence?

Answer 1

CEA 12 every person is presumed component and compellable to give evidence (see also s 7-9 QEA)

Question 2

CTH - A person is not component to give evidence when?

Answer 2

s 13 CEA does not have capacity to understand a question and answer to a question about a fact and that incapacity can not be overcome…ss(8) for the purposes of determining a question under this section court can obtain information from an expert (see also s 9A-9C QEA)

Question 3

CTH - Is a defendant component and compellable in a criminal proceeding?

Answer 3

s 17 CEA a defendant is presumed competent but not compellable to give evidence for the prosecution (see also s 8 QEA)

Question 4

CTH - Is a spouse of a defendant component and compellable to give evidence for the prosecution?

Answer 4

s 18 CEA a spouse (de facto, partner, or child) may object to giving evidence for the prosecution…this objection must be heard in absence of the jury…court must have regard to ss(6)-(7) when determining the objection…and the prosecution can not comment on the ruling ss (7) (Cf s 8(2) QEA)

Question 5

CTH - Can the prosecution comment on the defendant’s failure to give evidence?

Answer 5

s 20 CEA - no

Question 6

CTH - During evidence in chief can a witness use a document in an attempt to revive his or her own memory? and can the witness read it out loud?

Answer 6

s 32 CEA - A witness must speak from memory not must not use a document to attempt to revive memory without leave of the court…a party may apply to the court for leave…and the court will take into account (a) whether the witness will be able to recall the fact or opinion without the use of the document AND (b) and whether the document was written or made by the witness when the events were fresh in the mind of the witness or was at such a time was found to be accurate by the witness…

the court with leave may allow the witness to read aloud so much of the document as it relates to that fact or opinion

Question 7

It is a rule of EIC that a witness speaks from memory rather than reliance on a document. The CL and CTH permits reviving memory in certain circumstances. What is the difference between the CL and CTH position?

Answer 7

CL position requires the note to be contemporaneous Cf s 32 where the document must either be made when the events were fresh in the mind of the witness or made at time found to be by the witness to be accurate - greater flexibility

Question 8

CTH - The starting point is that a witness must give evidence without reference to a document, however under the CEA a certain type of witness may give evidence from reading from a document or being led through that document…discuss

Answer 8

s 33 CEA a police officer may be lead through a statement or read a statement during evidence in chief so long as the statement was made at the time of the event or soon after the occurrence was made and is signed and is disclosed

Question 9

CTH - What is the rule in Walker v Walker and what is the CEA position on the rule?

Answer 9

The rule in Walker v Walker - where party A calls for a document that B has in court and B may then require A to tender it….and the contents of the document are evidence of any relevant fact recorded…notwithstanding hearsay rule…the rule does not apply to a contemporaneous note…uncertain whether applies in criminal proceedings…

s 35 CEA abolishes the requirement that a party must tender a document called for

Question 10

CTH - What rule of EIC, CE, and RE in the CEA?

Answer 10

EIC

s 37 - leading questions are prohibited
s 38 - party not impugn witness called about general evidence or credit unless leave (see also s 17 QEA)

RE

S 39 - Re examination may only relate to matters arising out of cross…unless leave is given

CE

s 42 - leading questions are permitted
s 41 - must not ask improper questions (see also s 21 QEA)
s 43 - a witness maybe cross examined on prior inconsistent statement (see also s 18-19 QEA)
s 46 - ‘brown v dunn’ the court may give leave to a party to recall a witness about a matter raised by evidence which the witness was not cross examined on…etc (CL position harsher)

Question 11

CTH - Is there an absolute right to ask leading questions in cross examination?

Answer 11

No at CL the court may direct a cross examiner to ask non leading questions where it appears the witness is of to much assistance to the cross examiner and s 42(3) CEA provides the court with discretion to make the cross examiner ask non leading questions

Question 12

What is the original document rule?

Answer 12

Where a party produces a document the original rather than a copy should be produced as that is the best evidence of its content…however s 51 CEA has abolished that rule

Question 13

CTH - What is relevant evidence?

Answer 13

s 55-56 Evidence is relevant where, if it were accepted, it could rationally effect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue. All evidence which is not relevant is not admissible (see CL Wilson v R)

Question 14

CTH - What is the CEA rule against hearsay?

Answer 14

s 59 CEA Evidence of a previous representation made by a person if not admissible to prove the existence of a fact that it can be reasonably supposed that a person intended to assert by that fact (see CL - subramaniam v dpp)

Question 15

It is a rule of EIC that a party calling a witness is not permitted to impeach it’s own witness. The CL/QEA and CEA have different tests. Discuss.

Answer 15

At common law and s 17 CEA a party may seek leave to impeach own witness if they are declared hostile/adverse…however the threshold is lower at CEA the witness only needs to be found to be unfavourable which even includes making a prior inconsistent statement.

Question 16

CTH: How does the definition of hearsay s 59 CEA modify the common law definition of hearsay?

Answer 16

s 59 redefines hearsay to say that the rule will only apply where the marker ‘intended to assert’ a fact…this attempts to avoid the common law rule regarding implied assertions (see Walton v The Queen child saying “hello daddy (meaning accused); see also HCA pollit v the queen telephone exception”

Question 17

CTH: What section of the CEA deals with hearsay used for a non hearsay purpose?

Answer 17

s 60

Question 18

CTH: What section in the CEA makes admissible prelim complaint evidence in criminal proceedings? What is the difference between the CL position and the CEA?

Answer 18

s 66 CEA - In a criminal proceeding, a witness (who is called) an give hearsay evidence about a representation made about another person if they that person made the representation the asserted facts were fresh in the memory of the maker of the statement.

This provision is very broad…unlike the common law which narrowly permits prelim complaint evidence which goes to credit (sexually offences and DV now s 94A)…this makes admissible any representation not just complaints and not only for credit but evidence of the issues…which can include purely exculpatory statements made by the defendant to prove innocence (r v crisologo)

Question 19

Are the exceptions for first hand hearsay broader or narrower under the QEA when compared to CEA?

Answer 19

Narrower

QEA mostly deals with first hand / direct knowledge hearsay in the context of documents…see s 92 and 93 QEA…and only s 101 QEA seems to permit the admission of oral first hand hearsay in narrow circumstances…where as s 63-66 deal with both oral and documentary hearsay which is very broad.

Question 20

CTH: What are the CEA provisions deal with first hand hearsay in both criminal and civil proceedings?

Answer 20

s 63 civil not available
s 64 civil available
s 65 crim not available
s 66 crim available

Question 21

CTH - At common law it is an exception to hearsay that a person can give evidence about another persons statement about their contemporaneous thoughts, feelings, state of mind, and health…what CEA provision admits that evidence?

Answer 21

s 66A

Question 22

CTH - In QLD business records can be admissible under s 84 ‘books of account’, or 92(1)(b) or s 93 etc what is the business records provision in the CEA and how does it differ from QEA

Answer 22

s 69 CEA applies to both civil and criminal whereas QEA has them split…similar to QLD it need not be first hand hearsay provided that the information was supplied by a person who reasonably supposed to have personal knowledge

business includes government agencies

and unlike QLD there is no requirement that it is made in the ordinary course of business (i.e. reliability condition)

Question 23

CEA- At common law, in an ex parte proceeding hearsay is admissible so long as the source is identififed..what is the CEA provision

Answer 23

s 75 CEA

Question 24

Under the Commonwealth Evidence Act, when is evidence of a witness’s opinion admissible? (3 marks)

Answer 24

s 78 CEA - lay opinion - a witness may give a lay opinion about matters of common experience such as weather, apparent age weight or height, emotional state, or state of sobriety…if it is necessary to obtain an adequate account or understanding of their evidence

s 79 - expert opinion - if a person has specialised knowledge based of training, study, or experience can give an opinion if based wholly or substantially off that knowledge (Dasreef)

NB s 80 - ultimate issue rule abolished

Question 25

What is the different between the common law and CEA requirements for expert opinion evidence to be admissible?

Answer 25

s 79 does not require the specialised knowledge to come from a recognised field, and there is no basis rule...otherwise unchanged from the common law...Makita v Sprowles

Question 26

Under the Commonwealth Evidence Act, when is evidence of an admission from a witness not admissible? (3 marks)

Answer 26

s 81 hearsay rule goes not apply to admissions s 84 admissions are not admissible if they were influenced by violence or other conduct s 85 admissions made to person of authority to be excluded if the truth of admission was adversely affected s 86 record of interview only admissible if defendant has signed the document s 87 vicarious admissions - admissions by agents - (1)(a) agent (b) employee (c) common purpose (see also tripodi) s 98 evidence of silence - not admissible as admission by conduct if made in response to questioning by a person of authority s 90 discretion to exclude admissions adduced by the prosecution and unfair to defendant

Question 27

CEA - tendency/propensity - What section sets out the rule of tendency/propensity evidence?

Answer 27

s 97 CEA Evidence of a persons general character, or conduct is not admissible prove that person has a tendency to act in a particular way or have a state of mind unless...(1)(a) notice is given to other party (S99 -FCR 30.31) and (1)(b) have significant probative value (Cf CL - Makin which requires higher test of substantial). I.e. tendency evidence - because a person acted or behaved in a similar way in the past, he has a propensity to act in that way, the likelihood is that he acted in the same way on the occasion in issue. Tendency and coincidence evidence is not admissible where there is a real possibility of concoction, collusion, and contamination (see also 132A QEA)

Question 28

CEA - coincidence/similar fact rule - What section sets out the rule of tendency/propensity evidence?

Answer 28

s 98 - Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to the similarities in the events, it is impossible that the events occurred coincidental unless (1)(a) notice is given S99- FCR 30.32 and (1)(b) the evidence has significant probative value. The rationale for admission is that the circumstances are so strikingly similar that it would be an afford to common sense to conclude that the happened naturally and coincidentally.

Question 29

S 101 CEA provides a further restriction on tendency and coincidence evidence in criminal proceedings...what is it?

Answer 29

s 101 CEA tendency and coincidence evidence adduced by the prosecution is not admissible unless the probative value of the evidence substantially outweighs any prejudice it may have on the defendant...however this does not apply to the prosecution adducing evidence of this kind to explain or contradict evidence adduced the defendant.

Question 30

When is evidence under s 97-98 CEA admissible?

Answer 30

s 97/98 tendency or coincidence evidence is only admissible where notice is given by party intending on adducing it s 99-100 (FCR 30.31-32) and the evidence has significant probative value, however in criminal proceedings s 101 provides that the evidence probative value must substantial outweigh any prejudice to the defendant.

Question 31

What is and what section provides the 'Creditability rule'? and what are some exceptions ?

Answer 31

Rule of examination in chief is that evidence must relate to issues and not merely accrediting the witness (i.e. referring to prior consistent statements, or accrediting own witness (memory, eye sight etc))...this is in s 102 CEA, however exceptions s 103 during cross of witness; s 104 cross of accused etc; s 108 during re-examination evidence of a prior consistent statement if recent invention is alleged

Question 32

What CEA section provides the rules for defendant giving good character evidence in a criminal proceeding?

Answer 32

s 110 CEA (1) evidence adduced by the defendant to prove that he is of good character hearsay, tendency, opinion etc rules do not apply, and they also do not apply to evidence adduce to prove the defendant is not a person of good character...however must first apply for leave (see s 15 QEA).

Question 33

What sections deal with identification evidence in criminal cases in CEA?

Answer 33

s 114 - visual ID s 115 - picture ID prima facie obligation to conduct an identification parade s 114 (2) warnings regarding ID 116

Question 34

When should a judge give a warning about unreliable evidence? (CTH)

Answer 34

s 165 where evidence of hearsay, admissions, or ID is tendered...if a party requests the direction be made.

Question 35

What CEA sections deal with presumptions regarding postal and electronic communications?

Answer 35

s 160 CEA; s 161 CEA

Question 36

What CEA section abolishes the requirement that it is not necessary that evidence on which are party relies be corroborated, and that a warning to a jury is not necessary?

Answer 36

s 164 CEA Bonus points s 632 Criminal Code QLD