Evidence Case List

Question 1

R v Kneebone

Answer 1

Prosecutor’s duty to call all material witnesses, otherwise it is a breach of the prosecutor’s duties and DPP Guidelines.
Related sections: s 165 EA (when determining whether to call a witness, generally assume reliability and credibility except for exceptional circumstances)
Bar rules: 83, 84, 87, 88, 89 and 90.

Ss 141 and 142 of Criminal Proc Act, which require service of notice of the prosecution case in proceedings on indictment.

Related cases: Mahmoud v R; R v Apostolides; Gilham v R and R v Reardon

Question 2

Mahmoud v R

Answer 2

Prohibition against prosecutor’s picking and choosing parts of evidence just to best present the prosecution’s case.
HCA said in these circumstances, it will at least require a direction from a trial judge.

Related sections: Bar rules: 83, 84.

Related cases on prosecutor’s duties: R v Kneebone, Gilham v R, R v Wood and R v Reardon

Question 3

SH v R

Answer 3

Caution to witness regarding lack of capacity.
Strict compliance with s 13(5)(a) - (c) of the Evidence Act is required.

Related cases: R v GW (prohibition against reversing the onus when determining whether a person does not have the requisite capacity to give sworn evidence).

Question 4

Browne v Dunn

Answer 4

Where a party intends to impugn a witness’ evidence, it must put the imputation to the witness to give them the opportunity to respond.

Usually, a breach of the rule in Browne v Dunn can be cured by granting leave to recall the witness under s 46 EA; granting leave to allow the first party to re-open it’s case and lead further evidence; cross-examining the party in breach; limiting the use of the evidence by the party in breach or excluding the evidence (drastic), or a direction to the jury.

Related ss: s 46 EA, leave to recall a witness; ss 11 and 26, broad powers of the court; ss 125 - 137: mandatory and discretionary exclusions.

Related cases: R v Khamis: outlines the options available to the court; MJW v The Queen.

Picker v The Queen: Obligation of counsel to put client’s instructions to witness

• Obligation to put client’s instructions to the complainant in cross-examination as adequately as possible;
• That the failure to put instructions to the complainant in cross-examination does not lead to the conclusion that the defendant has fabricated their evidence – see [43]

Question 5

ACCC v Air NZ (No 1)

Answer 5

1) A court may examine a document or thing and draw reasonable inferences about the document from that examination, including as to authenticity.
2) Authenticity is not a pre-requisite for admissibility under s 55 EA.

Related cases: Gregg v R; Capital Securities v Calleja

Related sections: s 48 re Adducing contents of doc
S 58 - inferences, including as to authenticity
S 55 - relevance
As 135 - 137 - Mandatory and discretionary exclusions
s 146: Facilitation of proof of documents produced by processes, machines and other devices
s 147: Facilitation of proof of documents produced by processes, machines and other devices in the court of business
s 183 permits a court to examine a document or thing and draw reasonable inferences from that document.
Facilitation of proof may be aided by ss 166 - 181 EA.

Question 6

Gregg v R

Answer 6

1) NSWCCA held that Rusu, to the extent that it decided that the authenticity of a document cannot be proved by consideration of the form and content of that document, was incorrectly decided.
2) Section 48(1) EA merely prescribes a manner of adducing evidence of the content of a document - it leaves questions of authenticity untouched.

Related ss: s 146: Facilitation of proof of documents produced by processes, machines and other devices
s 147: Facilitation of proof of documents produced by processes, machines and other devices in the court of business
s 183 permits a court to examine a document or thing and draw reasonable inferences from that document.
Facilitation of proof may be aided by ss 166 - 181 EA.

Related cases: ACCC v Air NZ (No 1) and Capital Securities v Calleja

Question 7

Smith v The Queen

Answer 7

Authority that for evidence to be admissible, it must be capable of rationally affecting the assessment of the probability of a fact in issue.

Police identification evidence, with nothing more, was not so capable, and therefore, not relevant.

Question 8

Lee v The Queen

Answer 8

Evidence of a previous representation must be assessed by reference to the facts the witness intended to assert.

Now, under s 60(2), evidence admitted for a credibility purpose can be used for the non-hearsay purpose, even if it is second-hand or more remote hearsay.

S 60(3) states that s 60 does not apply to admissions in criminal proceedings.

Note: the combined effect of sections 81 and 82 is to make hearsay evidence of a first hand admission admissible, notwithstanding the hearsay rule as s 81 states that the Hearsay rule does not apply to evidence of admissions, but s 82 limits that to first hand hearsay only.

Relevant sections: ss 55(1) - Relevance
s 59 - Hearsay rule
s 101A, 102 and 103 and 104 in relation to admissibility of credibility evidence;
s 60 (2) and (3) in relation to use of evidence for a hearsay purpose if already admitted for a non-hearsay purpose, except for evidence of admissions in criminal proceedings
ss 81 and 82 - Evidence of an admission can be admitted despite being hearsay (s 81 EA), unless second hand (s 82).

Question 9

Esso Australia Resources v Federal Commissioner of Taxation

Answer 9

Authority that there is now a single test for client legal privilege, regardless of whether it is before or after proceedings have been commenced, and that is the dominant purpose test.

Relevant sections: ss 117 (definitions), s 118 (legal advice), s 119 (litigation privilege), s 122 (loss of privilege).

Related cases: Mann v Carnell (when privilege lost);
Expense Reduction Analysts v Armstrong (when privilege lost);
Kaye v Woods: privilege lost through misconduct

Question 10

Mann v Carnell

Answer 10

Disclosure of a confidential communication will not result in waiver of privilege unless the disclosure is inconsistent with the maintenance of that privilege (i.e. by serving it, seeking to rely on it).

Related sections: s 117 - definitions, s 118 - legal advice, s 119 - litigation privilege, s 122 - loss of privilege.

Related cases: Esso Australia Resources v Federal Commissioner of Taxation
Expense Reduction Analysts v Armstrong
Kaye v Woods: Privilege lost through misconduct

Question 11

Stanoevski v The Queen

Answer 11

1) The section 192(2) EA factors must be considered in any grant of leave.
2) In this case, the prosecution was granted leave to cross-examine on Character in circumstances where the evidence on Character was not definitive and there was a real risk of prejudice to the accused.

Question 12

Jones v Dunkel

Answer 12

A party’s unexplained failure to call evidence that it might reasonably be expected to have called, may permit an inference that the evidence, if adduced, would not have assisted that party.

Inference can almost never be drawn in criminal proceedings against the accused.

Related sections: s 20 EA: Judge may comment on an accused’s failure to give evidence (indictable offences only), but not really because the Judge and prosecution can’t suggest that the failure of the accused to give evidence was because he or she knew that he or she was guilty.

S 89: Evidence of silence generally
s 89A: Evidence of silence in criminal proceedings for serious indictable offence.

Related cases:
Dyer v The Queen: A Jones v Dunkel type inference is almost never available in criminal proceedings against the accused.
The accused cannot be expected to give evidence.

Azzopardi v The Queen: A judge can never give directions to a jury suggesting guilt as a result of the defendant’s failure to give evidence.
Generally, a judge cannot comment on an accused’s failure to give an explanation except for in the particular circumstances of Weissensteiner v The Queen, which is where if evidence rebutting a prosecution’s case exists, it is within the defendant’s knowledge only, and the defendant fails to offer an explanation.

Weissensteiner v The Queen: If there is evidence to explain or rebut the prosecution’s theory of the case, it is peculiarly within the knowledge of the defendant and the defendant fails to offer an explanation. In those circumstances, the judge may comment (or is it direct) the jury that the jury may more readily accept the prosecution’s version of events. But note that such a course of action is fraught with peril.

Question 13

Azzopardi v The Queen

Answer 13

Outlines the 4 things that a Judge should almost always mention in a section 20 direction to the jury in respect of the accused’s failure to give evidence:

1) Crown bears the onus of proving case beyond reasonable doubt;
2) Accused bears no onus of proof on any fact in dispute;
3) The accused’s decision not to give evidence cannot be used against him or her in any way;
4) Jury must not speculate about what might have been said had the accused given evidence.

Related sections: s 20 EA - Direction to Jury
ss 89 and 89A EA
s 141 EA: Standard of proof in criminal proceedings

Related cases: Jones v Dunkel; Dyers v The Queen; Azzopardi v The Queen and Weissensteiner.

Question 14

Dyers v The Queen

Answer 14

It is almost never appropriate to draw a Jones v Dunkel type inference against the accused in criminal proceedings, except for in the rare and exceptional circumstances of a Weissensteiner-type exception.

Question 15

Dasreef v Hawcher

Answer 15

Admissibility of expert opinion under ss 76(1) and 79(1).
The expert must:
1) Identify the facts or assumptions on which the opinion is based; and
2) Explain how the specialised knowledge applies to the facts observed, so as to produce the opinion propounded.
The opinion must be presented in a way so that it is possible to tell that it is based on the expert’s specialised training, study or experience.

Relevant sections: s 55(1) - relevance; 
s 76(1) Opinion rule
s 79(1) Exception for opinion wholly or substantially based on training, study or experience.

Related cases: Makita v Sproule; Honeysett v The Queen; Tuite v The Queen - all relate to exception for opinion evidence based on specialised training, study or experience.

Question 16

Honeysett v The Queen

Answer 16

Evidence of an expert anatomist.
For evidence to be admissible under s 79(1), it must be wholly or substantially based on the expert’s training, study or experience. It cannot be based on casual observations “dressed up” in scientific language.

Related sections: s 55(1) relevance;
s 76(1) Opinion rule; and
s 79(1)  Exception for opinion wholly or substantially based on the expert's training, study or experience.

Related cases: Makita v Sproule; Dasreef v Hawcher; Tuite v The Queen.

Question 17

IMM v The Queen

Answer 17

When assessing probative value, reliability and credibility are to be taken at their highest.

It is not really good law in relation to complaint evidence any longer, because now Bauer says that complaint evidence, even of uncharged acts, does not have to have “something more” to have significant probative value if from the same complainant, but will need to bear some similarity to reach the “significant probative value” test if from different complainants.

Relevant sections: ss 97 (tendency rule), ss 99, s 100, s 101 (for criminal proceedings only), s 97A (for child sexual assault only).

Related cases: Shamouil (IMM affirms Shamouil).

Question 18

Hughes v The Queen

Answer 18

The more similar the charged acts, the more likely it is that the acts will carry significant probative value.
The commonality / similarity must be sufficiently cogent to identify a pattern.
The court must consider the extent to which the evidence supports the existence of the tendency and the extent to which the tendency makes it more likely the charged acts occurred.

Relevant sections: ss 97, s 101, s 97A, s 99, s 100.

Related cases: McPhillamy v The Queen, Bauer v The Queen,

Question 19

McPhillamy v The Queen

Answer 19

Authority for the proposition pre s 97A EA, that evidence that demonstrates that an accused had a sexual interest in young boys, by itself, will not of itself be enough to satisfy the threshold for significant probative value.
The significant probative value of the evidence turns on the accused propensity to act on that sexual interest.

But, under s 97A(2), tendency evidence about the sexual interest the defendant has, or had in children (even if the defendant didn’t act on that interest), is presumed to have significant probative value.

Relevant ss:

• s 55(1) relevance
• s 97, 97A, 101 EA in relation to significant probative value;
• s 99 and 100 in relation to notice;
• s 135 - 137 re discretionary and mandatory exclusions.

Related cases: Hughes v The Queen; Bauer v The Queen

Question 20

Eric Russell Picker v R

Answer 20

Picker was charged with sexual assault.

NSWCCA said that it was improper for the Crown to ask Picker whether the accused had fabricated her evidence.

NSWCCA said the effect of this type of questioning is to reverse the onus of proof. The question implies that unless the jury is satisfied that the complainant is a liar, they should accept her evidence and convict.

Relevant sections:

• s 41 EA: Improper questions
• s 161 Criminal Proc Act: Judicial guidance on summing up;
• s 141 EA: Standard of proof in criminal proceedings.
• Bar Rules: 83 (Pros to fairly assist the court to arrive at truth); and
• 84 (Pros not to press case for conviction beyond what is fair and reasonable).

Related cases:
R v Wood and Palmer v The Queen (pros asking improper questions and reversing the onus); R v Gilham; R v E and R v F

Question 21

Palmer v The Queen

Answer 21

Accused was charged with sexual assault of a minor. He had fairly strong alibi evidence because he was a process server so swore affidavits as to his whereabouts (essentially) hour by hour at the end of each day.

The accused was improperly cross-examined as to why the complainant would lie but his counsel did not object.

Majority of the HCA found that:

1) Prosecutor asked improper questions about the complainant’s motive to lie; and
2) The verdict was unsafe and unsatisfactory given the alibi evidence.

This case is authority that a lawyer may question a witness’ truthfulness / accuracy, but may not ask the witness (esp. the accused in criminal proceedings) to speculate about another witness’ motive to lie.

Relevant sections: 
s 41 (improper questions) EA
s 141 (criminal standard of proof) EA
s 161 Crim Proc Act (Summing up)
Bar rules: 83 and 84

Related cases:
Picker v R; Wood v R; R v Gilham; R v E and R v F.

Question 22

Grech v The Queen; Kadir v The Queen

Answer 22

Evidence obtained in direct contravention of an Australian law is more likely to be excluded under s 138 EA.

Australia does not have a “fruit from a poison tree” exclusion so whether the evidence should be excluded will be considered under the same s 138(3) factors.

The fact that improperly obtained evidence would have been difficult to obtain legally does not weigh in favour of its admission under s 138(3)(h).

Another relevant factor is whether the infringing party regularly engages in this type of behaviour.

Relevant sections:
- s 55(1) EA - relevance
- s 138 EA - improperly obtained evidence;
ss 135 - 137 - mandatory and discretionary exclusions.

Related case: DPP v Marijancevic

Question 23

Sio v The Queen

Answer 23

Authority that when considering the admissibility of a hearsay statement under s 65(2) (criminal proceedings, maker not available), the phrase “in circumstances that make it unlikely the representation is a fabrication” the whole circumstances must be considered.

Here, HCA said not enough that the previous representation (Filihila’s statement to police) was made shortly after the events and incriminated Filihila because it also minimised FIlihila’s involvement and sought to implicate Sio.

So basically, previous representations from co-accuseds and prison informants are not “unlikely to be fabrications” or “reliable” under s 65(2)(b) and (c) just because they are made close in time. Need to consider if the witness would have a motive to lie.

Related cases: None spring to mind.
But note, key difference between this and Lee is that in Lee, the witness (Calin) changed his story, in Sio, the witness refused to answer and was therefore “unavailable”.

Relevant sections:
s 55(1) - relevance
s 59(1) - hearsay rule
s 65(2)(b) - exception to the hearsay rule
ss 135 - 137.

Question 24

R v Belghar

Answer 24

Belghar, a fundamentalist muslim was successfully granted a trial by Judge alone (over objection from prosecution) on the basis that there had been adverse publicity regarding people who held extreme beliefs in the Muslim faith.

On appeal, Court said:

1) Judge erred in exercise of discretion by allowing extraneous / irrelevant matters to guide him;
2) Some people may hold prejudices against conservative Muslims but, without evidence that such views are widespread or likely to influence jurors, it must be assumed that the protections afforded the accused with protect him from an unjust result;
3) The trial judge had not evidence of the alleged prejudice and didn’t consider any of the options for guarding against potential prejudice, which includes:
a) Reminding the jury of their obligations before they are selected; and
b) Directions to the jury under s 161 Criminal Procedure Act.

Relevant sections:
s 161 Criminal Procedure Act (summing up)
s 131, 132 and 132A Criminal Procedure Act (Judge alone trials)

Related cases:
R v Simmons; R v Moore
R v Hawi (being a member of a bikie gang is not sufficient to warrant a judge-alone trial due to prejudice);
DPP v Farrugia

Question 25

R v Simmons; R v Moore

Answer 25

The accuseds were charged with murder.
The application for judge-alone trial was made outside of the time permitted by s 132A(1) Crim Proc Act and therefore leave was required.
Further, it was a joint trial so s 132A(2) Crim Proc Act applied.

This case sets out the 9 or 10 considerations that must be taken into account under s 132(4) Crim Proc Act, which are:

1) There is no presumption in favour of trial by jury;
2) There is no right to trial by judge-alone, but the accused’s preference is to be considered;
3) Community standards and intentions;
4) Efficiency and length of trial;
5) Duty of a judge to provide reasons;
6) Whether there is complex expert evidence involved;
7) Credibility issues (but NSWCCA says it is an error to assume that a jury will necessarily be a better judge of credibility than a judge);
8) The possible admission of prejudicial evidence and whether such prejudice can be cured by directions to the jury;
9) Interests of justice throughout; and
10) Possible need to avoid the actuality or appearance of judge-shopping.

Relevant sections: ss 131, 132, 132A Crim Proc Act in relation to judge-alone trials
s 161 Crim Proc Act may also have a role to play.

Related cases:
R v Belghar;
R v Hawi (being a member of a bikie gang not sufficient to warrant judge-alone trial because of perceived prejudice);
DPP v Farrugia.

Question 26

R v Bauer

Answer 26

HCA “spoke with one voice” to confirm that:
(1) Tendency evidence of uncharged acts from a single complainant no longer have to have any “special features” to establish that the complaint evidence has “significant probative value”.

(2) BUT, if the complaints of uncharged acts are from people other than the complainant then, ordinarily, there will need to be some feature of the offending that links the two together (unless it’s a child sexual offence, in which case s 97A applies to establish a rebuttable presumption that complaints of uncharged acts have significant probative value).

Question 27

What are the relevant cases in relation to client-legal privilege? (4 marks)

Answer 27

(1) Esso Australian Resources v Federal Commissioner of Taxation
(2) Mann v Carnell
(3) Expense Reduction Analysts v Armstrong
(4) Kaye v Woods

Question 28

What section of what act applies if a respondent to a search, freezing or other order under Part 25 UCPR is required to disclose documents that may tend to prove he has committed an offence?

Answer 28

Section 128A Evidence Act

Question 29

Does s 131 EA prevent the disclosure of the terms of a settlement (assume no confidentiality clause)?

Answer 29

No. As per State Rail Authority of NSW v Smith, the court said that s 131 is concerned with communications between the parties in an attempt to settle. It is not concerned with the settlement document itself, this can be sought and disclosed.

Further, s 131 EA didn’t prevent disclosure as Smith was compelled by law to disclose it.

Question 30

Outline two cases that discuss public interest immunity and what they are authority for?

Answer 30

(1) Sankey v Whitlam: When public interest immunity is advanced as a reason for non-disclosure, court must perform a balancing test of the public interest in admitting the document vs the public interest in maintaining relevant issues of state.
(2) HT v The Queen: If a document is found to be subject to public interest immunity, it is an immunity from disclosure. The document is not provided to either party and the court must not rely on the document.

Orders can be made to restrict the usual principles of open justice while the immunity is being considered. These include:

• Closed court for interlocutory hearing;
• Non-disclosure and non-publication orders;
• Orders restricting access or use of documents.