Evidence

Question 1

Relevance: When is evidence admissible?

Answer 1

Section 56: when it is relevant in a proceeding

Question 2

Relevance: When is evidence relevant to a proceeding?

Answer 2

Section 55: when if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. This can include evidence to credibility, the admissibility of other evidence, failing to adduce evidence.

Question 3

Relevance: What is required between the evidence and the fact an issue?

Answer 3

A minimal logical connection - need only be capable of affecting the probability of the existence of fact (DPP v Paulino)

Question 4

Relevance: When will circumstantial evidence be relevant?

Answer 4

When there is a logical basis for rebutting other explanations (DPP v Massey). Also needs to be assessed against to whole case and not in isolation from all other evidence (Elomar v R)

Question 5

Relevance: What is a ‘fact in issue’?

Answer 5

Fact which is to be determined as a matter of substantive law - ‘the ultimate fact in issue’

Question 6

Relevance: Is there a discretion as to whether evidence is relevant or not?

Answer 6

No.

Question 7

Relevance: What are the threshold issues for admissibility?

Answer 7

Is the evidence relevant? If not, it must be excluded; if it is, do any of the exclusionary rules apply?

Question 8

Relevance: What is direct evidence?

Answer 8

What the witness saw, heard, or otherwise perceived in relation to the facts in issue. Only need to consider credibility.

Question 9

Relevance: What is circumstantial/indirect evidence?

Answer 9

Circumstances from which is said by one part that the fact in issue may be inferred (motive; identity; forensic evidence)

Question 10

Relevance: The two directions required for prosecution’s circumstantial evidence:

Answer 10

1. To find the accused guilty, his or her guilt must not only be a reasonable inference, it must be the only reasonable inference which can be drawn from the circumstances established by the evidence; and
2. If the jury considers that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, they must find him or her not guilty (Plomp v R)

Question 11

Relevance: Odgers test for determining if evidence may be admitted and how it may be used:

Answer 11

1. whether the evidence in question is relevant (as defined in s55) or, at least, provisionally relevant (s57)
2. how the evidence is relevant (it may be relevant in different ways and in respect of more than one fact in issue)
3. what use or uses are sought to be made of the evidence
4. whether any of the exclusionary rules in Chapter 3 apply to the evidence (some of the rules only apply to a particular use of evidence)
5. whether one permissible use of the evidence will allow it to be used for an otherwise impermissible use (e.g., s60)
6. whether discretionary exclusion of the evidence is appropriate (s135, s137, or s138)

and, it may be necessary to determine:

7 whether an order should be made under s169(1)(c) or (3) that the evidence not be admitted in evidence (due to non-compliance with the request procedure in s166 – s169)

8. whether discretionary prohibition of a particular use of the evidence is appropriate (s136)
9. whether, in civil proceedings, an order can and should be made that a provision of the Act is not to apply to the evidence (s190(3))
10. whether there has been an effective waiver of a provision of the Act (s190(1)).

Question 12

Exclusions: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger the evidence might …?

Answer 12

Section 135: be unfairly prejudicial to a party; be misleading or confusing; cause or result in undue waste of time; or unnecessarily demean the deceased in a criminal proceeding for a homicide offence.

Question 13

Exclusions: What is the court’s procedure in applying section 135 discretion to exclude?

Answer 13

1. assess the probative value of the evidence;
2. decide whether there is a risk that, if admitted, the evidence might have one or more of the identified consequences; and
3. determine whether the probative value of the evidence is substantially outweighed by the risks identified (see Capital Securities XV Pty Ltd v Calleja [20187] NSWCA 26, [115]).

Question 14

Exclusions: How do you define ‘probative value’?

Answer 14

UEA Dictionary: ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’

Question 15

Exclusions: can the use of evidence be limited?

Answer 15

Section 136: yes, if it might unfairly prejudice a party or be misleading or confusing (for example, redacting a transcript)

Question 16

Exclusions: What is the ‘probative value’? (Fix)

Answer 16

Not defined by the UEA, but the ALRC explains: factors to be taken into account in determining whether a piece of evidence has the requisite degree of probative value or results in a degree of unfair prejudice will vary depending on the type of evidence and the context in which it is sought to be adduced

Question 17

Exclusions: what is ‘unfair prejudice’?

Answer 17

Not defined by the UEA, but said to arise if there is real risk it will be misused by the jury in some unfair way’ (R v BD)

Question 18

Witnesses: What is the general
rule about competence and compellability?

Answer 18

Section 12: every person is competent to give evidence and every person who is competent to give evidence about a fact is compellable to give that evidence

Question 19

Witnesses: Can a person who is incompetent give evidence?

Answer 19

Section 13(5): the person may give unsworn evidence if the court has told them it is important to tell the truth and they may be asked questions they do not know and they should tell the court if this happens and they should feel no pressure to agree with statements they do not believe to be true (also consider ss 30 (interpreters) and 31 (deaf and mute witnesses)

Question 20

Witnesses: When will a person be deemed not competent to give evidence?

Answer 20

Section 13: if, for any reason (including disability and does not presume children) they do not have the capacity to understand the question about the fact or to give an answer that can be understood to a question about the fact and the incapacity cannot be overcome. They will be incapable of doing so if they do not understand in giving evidence they have an obligation to give truthful evidence

Question 21

Witnesses: Can a person with reduced capacity be compelled to give evidence?

Answer 21

Section 14: would substantial cost or delay be incurred in ensuring that a person has the capacity to understand a question about a matter or to give an answer that can be understood to a question about the matter?
if no – the person is, subject to s15 - s19, compellable to give evidence;
if yes – is the court satisfied that adequate evidence on the matter has already been given, or is able to be given, from another person or source? If yes – the person is not compellable to give evidence on the matter.

Question 22

Witnesses: Compellability of spouses and others in criminal proceedings

Answer 22

18 Compellability of spouses and others in criminal proceedings generally
(1) This section applies only in a criminal proceeding.

(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of an accused may object to being required—
(a) to give evidence; or
(b) to give evidence of a communication between the person and the accused—
as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that—
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following—
(a) the nature and gravity of the offence for which the accused is being prosecuted;
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the accused and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the accused.

(8) If an objection under this section has been determined, the prosecutor may not comment on—
(a) the objection; or
(b) the decision of the court in relation to the objection; or
(c) the failure of the person to give evidence.

In determining the objection, the question to be answered is whether the court is satisfied (taking into account the matters set out in s18(7)) that:
there is a likelihood that harm would or might be caused to the person or to the relationship between the person and the accused if the person gives evidence as a witness for the prosecution; and
the nature and extent of that harm outweighs the desirability of having the evidence given.
If ‘no’ – the court may require the person to give evidence.
If ‘yes’ – the person must not be required to give the evidence.

Question 23

What is a ‘leading question’?

Answer 23

Dictionary: A question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the question; or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked

Question 24

Witnesses: When will a leading question in EIC or re-examination be permitted?

Answer 24

Section 37:
(a) the court gives leave
(b) the question relates to a matter introductory to the witness’s evidence or
(c) no objection is made and each part is represented by an Australian legal practitioner or prosecutor or
(d) the question relates to a matter that is not in dispute or
(e) if the witness has specialised knowledge based on their training, study or experience and the question is being asked for the purpose of obtaining their opinion about a hypothetical statement of facts
(2) if the court directs it in a civil proceeding and the question relates to an investigation, inspection or report they made in carrying out public or official duties

Question 25

Witnesses: What is the exception to reviving memory in court for police officers in criminal proceedings?

Answer 25

Section 33: a police officer may give EIC for the prosecution by reading or being led through a written statement they previously made if: - the statement must have been made by the police officer at the time of, or soon after, the occurrence of the events to which the statement refers; and - the police officer must have signed the statement when it was made; and - a copy of the statement must have been given to the person charged or to the that person’s legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution

Question 26

Witnesses: While giving evidence, is a witness entitled to use a document to revive their memory about a fact or opinion?

Answer 26

Section 32: Not without the court's leave. It making this determination, the court must take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that— (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate. With leave, the witness may read aloud the relevant parts of the document. The court may also make any directions to ensure the document is produced to a party that requests it. Client legal privilege is lost. See also section 34 - revive outside court.

Question 27

Witnesses: What is the rule about 'unfavourable witnesses'?

Answer 27

Section 38: Court may grant leave for a party to question its witness as cross-examination for the following: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement or (d) matters relating to the witness's credibility The focus is on the evidence being unfavourable, not the witness (DPP v Garrett)

Question 28

'Witnesses': Who is an 'unfavourable witness'?

Answer 28

Not defined by the UEA, but is said to mean 'not favourable', but not 'adverse' in the sense of 'hostile' (DPP v Garrett)

Question 29

'Witnesses': What is the common law rule in Jones v Dunkel?

Answer 29

This rule operates (following evidence in chief) where there is an unexplained failure by a party to give evidence, to call witneses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party (not in criminal proceedings - s 43 Jury Directions Act).

Question 30

Cross-examination: What is an 'improper question'?

Answer 30

Section 41: Not allowed and may be objected to (however, failure to disallow a question or inform witness need not be answered doesn't affect admissibility) Questions put to the witness that are: (a) misleading or confusing or (b) unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive or (c) put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate or (d) has no basis other than a stereotype. Must be disallowed if put to a vulnerable witness (unless satisfied it is necessary for the question to be put).

Question 31

Cross-examination: Who is a 'vulnerable witness'? (Ed to put in section)

Answer 31

(a) under 18 (b) has a cognitive impairment or intellectual disability or (c) considered to be vulnerable by reference to matters in s 41(4) (section repealed....)

Question 32

Cross-examination: What is the rule in Browne v Dunn?

Answer 32

"You have to stab a witness in the front and not in the back" - if a witness gives evidence that is inconsistent with what the opposing party wants to lead in evidence, the opposing party should raise the contention with that witness during cross-examination. In general terms, the rule prevents a party from putting forward a case without first giving opposing witnesses the opportunity of responding to it.

Question 33

Cross-examination: What is the procedure to follow when a witness does not admit to making an inconsistent statement?

Answer 33

Section 43: the cross-examiner can only adduce evidence of the statement if they: (a) inform the witness of enough of the circumstances of the making of the statement to enable to witness to identify the statement and (b) draw the witness's attention to so much of the statement as is inconsistent with the witness's evidence. A party may re-open the case for the purpose of adducing evidence of the statement. Refer also to section 45 (production of documents).

Question 34

Cross-examination: What is the rule about questions related to previous representations made by another person?

Answer 34

Section 44: Generally, a cross-examiner must not question a witness about a previous representation said to be made by another person unless, (a) evidence of the representation has been admitted or (b) the court is satisfied it will be admitted. However, where the above does not apply and the representation is contained within a document, it may be used to question a witness if: (a) the document is produced to the witness; (b) if it is a recording, can listen to it without others present hearing it; (c) the witness is asked after examining the document, if they stand by the evidence they have given; (d) neither the cross-examiner or witness is to identify the document or disclose its contents.

Question 35

Privileges: When can a witness object to giving particular evidence? (Offence)

Answer 35

Section 128: A witness may object to giving particular evidence, or evidence on a particular matter, on the ground the evidence may tend to prove they: (a) committed an offence against or arising under Australian or foreign law or (b) are liable to a civil penalty. Note: the common law privilege can apply to both judicial and non-judicial proceedings and associated procedures. Section 128 is limited to witnesses objecting in court (DPP v Peters). As at common law, no adverse inference should be drawn from the fact that privilege is claimed under s128 (Versace v Monte [2001] FCA 1572 at [6] per Tamberlin J (citing ALRC 26:1 at [862])). However, it is likely that claiming the privilege under s128 does not provide an adequate explanation for a failure to call evidence in civil proceedings. This means that the rule in Jones v Dunkel may apply to a defendant in a civil proceeding who claims the s 128 privilege (see Chong v CC Containers Pty Ltd (2015) 49 VR 402; [2015] VSCA 137 at [221]-[229] and cases cited).

Question 36

Privileges: What is the process for self-incrimination privilege?

Answer 36

Section 128(3): The court must determine if there are reasonable grounds for the objection. If determined to be, the court is not to require the witness to give the evidence and must inform them: (a) they do not need to give evidence unless the court requires under 128(4); (b) the court will issue a certificate if the witness is willing to give evidence without being required under 128(4) or they give evidence after being required to do so and (c) the effect of the certificate.

Question 37

Privileges: When may a court require a witness give evidence that may incriminate them?

Answer 37

Section 128(4): If the court is satisfied that: (a) the evidence does not tend to prove the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (b) the interests of justice require the witness give evidence.

Question 38

Privileges: What is the effect of a certificate issued in relation to self-incriminating evidence?

Answer 38

Section 128(7) confers both a use and a derivative use immunity with respect to evidence which is the subject of a certificate in any proceeding: in a Victorian court (see UEA Dictionary); and before any person or body authorised by a Victorian law, or by consent of parties, to hear, receive and examine evidence.

Question 39

Privileges: When may the court direct information or documentation be adduced as evidence in relation to matters of state?

Answer 39

Section 130: Where the public interest in the evidence that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality.

Question 40

Privileges: What factors may the court take into account when considering related to 'matters of state'?

Answer 40

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would— (a) prejudice the security, defence or international relations of Australia; or (b) damage relations between the Commonwealth and a State or between 2 or more States; or (c) prejudice the prevention, investigation or prosecution of an offence; or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or (f) prejudice the proper functioning of the government of the Commonwealth or a State.

Question 41

Privileges: What information or documents may be considered as 'matters of state'?

Answer 41

Section 130(4): The information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would— (a) prejudice the security, defence or international relations of Australia; or (b) damage relations between the Commonwealth and a State or between 2 or more States; or (c) prejudice the prevention, investigation or prosecution of an offence; or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or (f) prejudice the proper functioning of the government of the Commonwealth or a State.

Question 42

Privileges: Who is a 'client' for the purpose client legal privilege?

Answer 42

Section 117(1): client includes the following— (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service); (b) an employee or agent of a client; (c) an employer of a lawyer if the employer is— (i) the Commonwealth or a State or Territory; or (ii) a body established by a law of the Commonwealth or a State or Territory; (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting; (e) if a client has died—a personal representative of the client; (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made

Question 43

Privileges: What is a 'confidential communication' for the purpose of client legal privilege?

Answer 43

Section 117: confidential communication means a communication made in such circumstances that, when it was made— (a) the person who made it; or (b) the person to whom it was made— was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law

Question 44

Privileges: What is a 'confidential document' for the purpose of client legal privilege?

Answer 44

Section 117: confidential document means a document prepared in such circumstances that, when it was prepared— (a) the person who prepared it; or (b) the person for whom it was prepared— was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law

Question 45

Privileges: What is the client privilege concerning legal advice?

Answer 45

Section 118: Evidence cannot be adduce if the client objects and the court finds that adduce the evidence would result in a disclosure of: (a) a confidential communication made between the client and lawyer or (b) a confidential communication made between 2 or more lawyers acting for the client or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer, or another person, for the dominant purpose of the lawyer/s providing legal advice to the client.

Question 46

Privileges: What is the client privilege concerning litigation?

Answer 46

Section 119: Evidence cannot be adduced if the client objects and the court finds that doing so would result in the disclosure of: (a) confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the current proceedings), or an anticipated or pending Australian or overseas proceeding, in which they are or may be, or was or might have been, a party.

Question 47

Privileges: How must the claims in sections 118 and 119 be supported?

Answer 47

In DB CT Management Pty Ltd v McConnell Dowell Constructors [2021]: The evidence should be focused and specific. A "bare or skeletal" claim, unsupported by evidence which enables the court to consider and make an informed decision about the correctness of the claim or whether it is supportable, will not suffice. The claimant must, by direct admissible evidence, set out the facts from which the court can consider whether the assertion or assertions concerning the purpose of the communication in respect of which privilege is claimed is properly made. The best evidence will be that given by the person whose purpose is in question (at [81]). Several cases have drawn a distinction between evidence of the privilege, which is necessary, and a sworn assertion of the privilege, which is not sufficient. A person must lead evidence which allows a court to find the facts which support a conclusion of privilege, rather than leading evidence from a lawyer that, having reviewed the document, the lawyer considers that the documents are privileged (see DB CT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2021] FCA 512; Hancock v Rinehart [2016] NSWSC 12; ACCC v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232; Setka v Dalton (No 2) (Legal professional privilege) [2021] VSC 604).

Question 48

Privileges: What is the two-step approach to determining the 'dominant purpose'?

Answer 48

1. The subjective purpose/s of the person/s making or commissioning the particular communication must be determined; and 2. If the court determines that there was more than one purpose, and at least one of those purposes was capable of attracting legal professional privilege, the court must determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose (Matthews v SPI Electricity Pty Ltd & Ors (No 6) [2013] VSC 422 at [57] per Derham AsJ, citing Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59 at [3] per Maxwell P (for the Court)).

Question 49

Privileges: What is the rule for confidential information of an unrepresented party?

Answer 49

Section 120(1): Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication between the party and another person; or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party— for the dominant purpose of preparing for or conducting the proceeding.

Question 50

Privileges: When may client legal privilege be lost?

Answer 50

Section 121: Privilege may be lost generally if: the evidence is relevant to a question concerning the intentions, or competence in law, of a client or a party who has died (s121(1)); the court would be prevented from enforcing an order of an Australian court without the privileged evidence (s121(2)); or the evidence is of a communication or document that affects a right of a person (s121(3)). Section 122: Permits the adducing of evidence which would otherwise attract client legal privilege if a client or party: consents (s122(1)); or has acted inconsistently with the maintenance of the privilege (s122(2)). Exceptions: s122(4) and (5) provide a number of exceptions to this waiver rule; and s122(6) provides client legal privilege does not apply to documents used by a witness to revive memory pursuant to s32 or s33. Section 125: client legal privilege is lost for confidential communications made, and documents prepared: in furtherance of a fraud, offence, or act that renders a person liable to a civil penalty; or for a deliberate abuse of statutory power. (Section 189 deals with the general procedure for determining whether evidence should be admitted. Section 133 permits a court to order a document to be produced for inspection.)

Question 51

Credibility: What is the 'credibility rule'?

Answer 51

Section 102: Credibility evidence about a witness is not admissible.

Question 52

Credibility: What is 'credibility evidence'?

Answer 52

Section 101A: Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that— (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant— (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Question 53

Credibility: What is 'credibility'?

Answer 53

UEA dictionary: Credibility of a witness means the credibility of all or any part of the evidence of the witness, and includes the witness’ ability to observe or to remember facts and events about which the witness has given, is giving, or is to give evidence.

Question 54

Credibility: What are the exceptions to the credibility rule?

Answer 54

1. Evidence adduced in cross-examination (s103 and s104); 2. Evidence in rebuttal of denials (s106); 3. Evidence to re-establish credibility (s108); 4. Evidence of persons with specialised knowledge (s108C); and 5. Character of accused persons (s110).

Question 55

Credibility: What are the exceptions to the credibility rule for cross-examination?

Answer 55

Section 103(1) allows credibility evidence to be adduced during the cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. Without limiting the matters to which a court may have regard in determining whether evidence could substantially affect the assessment of the credibility of a witness, the court is to have regard to: whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when he or she was under an obligation to tell the truth; and the period of time that has elapsed since the acts or events to which the evidence relates were done or occurred (s103(2)). Section 104 (in criminal proceedings only): - the accused may be cross-examined about matters relevant to his or her credibility only with leave of the court (s104(2)); - in deciding whether to grant leave, the court must have regard to the factors in s 192(2); - the court must not grant leave to the prosecution unless evidence adduced by the accused has been admitted that: --tends to prove a witness called by the prosecutor has a tendency to be untruthful, and --is relevant solely or mainly to the witness’ credibility (s104(4)); - the court must not grant leave to another accused unless the evidence given by the accused who would be cross-examined includes evidence adverse to the accused seeking leave to cross-examine and that evidence has been admitted (s104(6)).

Question 56

Credibility: What is the exception to the credibility rule for rebutting denials by other evidence?

Answer 56

Section 106: - The credibility rule does not apply to evidence from other witnesses which is adduced to rebut denials made by a witness in cross-examination (s106(1)(a)). -Section 106(1)(a)(i) does not require each and every proposition from the rebuttal evidence to be put to the witness. Instead, the substance of the rebuttal evidence must be put (RC v The Queen [2022] NSWCCA 281, [88]). -Section 106(1)(a)(ii) describes three possible responses by the witness – denied; did not agree to; did not admit. A witness who remains mute, or who becomes argumentative and gives nonresponsive answers does not necessarily meet the requirements of denying, not agreeing to or not admitting the previous statement (see RC v The Queen [2022] NSWCCA 281, [90]-[104]). -The court’s leave is required to adduce evidence of this kind (s106(1)(b)) unless it falls within the categories provided by s106(2). Section 106(2): The court’s leave under s106(1)(b) is not required if the evidence tends to prove that the witness: - is biased or has a motive to lie; or has prior convictions; or - has made prior inconsistent statements; or - is unable to be aware of or recall matters to which his or her evidence relates; or - on a previous occasion has made a false representation while under an obligation to tell the truth. If, under s106, evidence relating to a witness (the first-mentioned witness) is adduced from another witness (the second-mentioned witness) to rebut a denial, the party who called the first-mentioned witness may do either or both of the following for the purpose of re-establishing the first-mentioned witness’ credibility: - re-examine the first-mentioned witness under s108(1); - cross-examine the second-mentioned witness.

Question 57

Credibility: What is the exception to the credibility rule for re-establishing credibility?

Answer 57

Section 108: (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) * * * * * (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if— (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion— and the court gives leave to adduce the evidence of the prior consistent statement.

Question 58

Credibility: What is the rule regarding an accused character?

Answer 58

Section 110: The hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence adduced by an accused to prove (directly or indirectly) they are generally, or particularly, a person of good character. Where this evidence is admitted, the prosecution is not precluded from adducing adducing evidence they are not a person of good character in cross-examination. Note: 'character evidence' is not defined, but usually accepted as evidence of a person's inherent moral qualities or disposition, including their reputation (Cooper v The King). Evidence of good character is not merely evidence as to credit. It is evidence that ‘could rationally affect (directly or indirectly) the assessment of the probability’ that the accused committed the offences charged (TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 at [35] and [94]).

Question 59

Credibility: When may an accused be cross-examined by the prosecution, or another accused, about their credibility?

Answer 59

Section 112: upon the court's leave. See Huges v R [2013] VSCA 338 for the court's consideration. 1. The accused adduced evidence of good character. 2. The judge must consider whether to grant leave, and if so, any limitations on the grant. 3. The judge must take into account the importance of the evidence and the extent to which the grant of leave would be unfair to the accused. 4. The judge has discretion to refuse leave if its probative value is substantially outweighed by the danger of unfair prejudice.

Question 60

Tendency and coincidence: What is the general rule regarding tendency and coincidence evidence?

Answer 60

Sections 97 and 98: Evidence is not admissible as tendency or coincidence evidence unless: - it has significant probative value; and - the other parties to the proceedings are given reasonable written notice of the intention to adduce the evidence (though application may be made to the court to dispense with this requirement) (s100). Though no notice is required if the evidence is led in response to tendency evidence (s 97(2)(b)) or coincidence evidence (s 98(2)(b)) adduced by another party.

Question 61

Tendency and coincidence: What is tendency evidence?

Answer 61

Evidence Act 2008 s 97, Dictionary Pt 1: Evidence of the character, reputation or conduct of a person, or a tendency a person has or had, which a party seeks to adduce for the purpose of proving the person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind.

Question 62

Tendency and coincidence: What is coincidence evidence?

Answer 62

Pt 1 Dictionary, s 98: Evidence that two or more events occurred, which is adduced to prove a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which the events occurred, or any similarities in both the events and their surrounding circumstances, it is improbable that they occurred coincidentally

Question 63

Tendency and coincidence: When will tendency and coincidence evidence be admissible?

Answer 63

Whether evidence is admissible as tendency or coincidence evidence is a question of fact which must be ‘answered in light of the facts and circumstances of the particular case’ (Velkoski v R (2014) 45 VR 680; [2014] VSCA 121 at [172] per the Court; see also KRI v R [2011] VSCA 127 at [57] per Hansen JA (Buchanan and Tate JJA agreeing); affirmed in RHB v R [2011] VSCA 295 at [18] per Nettle JA (Harper JA agreeing)).

Question 64

Tendency and coincidence: When will tendency and coincidence evidence be relevant?

Answer 64

The assessment of the relevance of evidence must take place having regard to the ultimate facts in issue and against the background of the issues at the trial. This may involve a dispute whether particular acts occurred, or whether they occurred in certain circumstances, or whether it was the accused who committed the acts (see Cox v R [2015] VSCA 28 at [26])