Evidence - cases - primary list Flashcards
R v Stephenson
Relevance – BAC readings not relevant where unknown driver and no negligence
R v Horvath
Relevance – Earlier dangerous overtaking not relevant where driver fell asleep
R v Buchanan
Relevance – Earlier driving at high speed on wrong side of road relevant
Weissensteiner v The Queen
Man last seen with two people and obtains possession of their boat. Direction - jury ‘could feel more comfortable/more safely convict’ when: (i)accused failed to testify on matters they must have had some knowledge that could otherwise be interpreted as indicative of their guilt; and (ii) the accused failed to substantiate an ‘affirmative’ defence which has been foreshadowed in questions asked in cross-examination of Crown witnesses.
Briginshaw v Briginshaw
The rule: the more serious an allegation, the more substantial proof may be required in order to prove such allegation on the balance of probabilities.
Tribunal of fact must “feel an actual persuasion of its occurrence or existence before it can be found”.
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of consequences flowing from a finding are considerations which must affect the answer to the question whether the issue has been proved”.
From Grant’s notes:
It means that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.
‘…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
Longman
Long delay in sexual case between occurrence and first complaint. Judge can (and should) give Longman direction to the court, or even exclude evidence in extreme cases, where appropriate. Direction points out (i) effect delay might have on weight and (ii) difficulties such delay can cause defence.
Walker v Walker
When party A calls for production of a document from party B, party B may insist on the whole document going into evidence as evidence of the truth of its contents (as a hearsay exception). (Note: abolished in Cth by s35 EAC.)
Jones v Dunkel
Widow truck driver claiming for head on collision. The rule: when there is an unexplained failure by a party to lead particular evidence, the court may draw an inference that the uncalled evidence would not have assisted the party. But note, Jones v Dunkel does not apply where: (i) the witness is unavailable, (ii) the party would not have known the likely gist of the evidence and (iii)there is some other reasonable explanation for not calling the witness (e.g. uncooperative/biased).
Browne v Dunn
In any trial (civil or criminal), if a party intends to contradict the evidence of a witness – either by other evidence or submission – then the party (via their barrister) must put the substance of the contradictory evidence to the witness during cross-examination, so that he/she might comment on it.
Exceptions: (i) notice in other ways (e.g. pleadings/pre-trial document), (ii) lack of necessity and delicacy (so incredible and romancing a character that the most effective cross-examination would be to ask the witness to leave the box) and (iii) challenges to general credit (e.g. damages in a PI claim).
Consequences:
-recall of witness,
-strong warnings by judge to jury
-denial of opportunity to call contradictory evidence
-implied acceptance of evidence -allegation of recent fabrication
-denial of challenge in submissions/address
-abortion of trial and
-successful appeal.
FROM GRANT’S NOTES
Consequences:
1) If not cross-examined on point, cross-examiner may be taken to accept opponent’s version and not permitted to make submissions contrary to that
2) Lack of cross-examination may give court good reason to accept witness’s evidence where uncontradicted especially. Careful of direction when jury is trier of fact.
3) Judge may allow witness to be recalled for further cross-examination or for party who called witness to recall them for evidence in rebuttal
4) Rare – Court may reject evidence of non-complying party on a point
5) Jury trials – if no appropriate direction given, judgment/conviction may be set aside as an unfair trial.
6) Appeal – Court may be disinclined to accept submission not tested due to breach
7) When non-complying Counsel subsequently calls evidence inconsistent with witness not cross-examined on point, risk that it may be alleged that later evidence is recent fabrication
R v Swaffield
Confession requirements: (i) voluntary (subjective), (ii) reliable (objective) and (iii) not excluded by the exercise of an overall judicial discretion. If accused exercises right to silence and admission subsequently elicited by underhanded means such as to breach that right, confession will be excluded.
Subramaniam v Public Prosecutor
Carried ammunition under threat from terrorists. Hearsay definition above.
Ratten v R
Ratten said his gun went off accidently, killing wife. However, prosecution led evidence of a phone call 5 minutes earlier from hysterical wife seeking police.
Ritz Hotel Ltd v Charles of the Ritz Ltd
Evidence is said to be “original” when a witness narrates another person’s statement for some purpose other than inducing a court to accept it as true. Three categories:
(i)statements as facts in issue (i.e. where the words spoken or written ‘operative words’ – e.g. legal documents such as wills/contracts, or someone saying ‘I offer to sell you my horse for one hundred pounds.’),
(ii) statements as facts relevant to the issue (e.g. words said accompanying a gift) and
(iii) prior statements of a witness which are consistent or inconsistent with the witness’ testimony (and hence to go credit).
R v Benz
Mother and daughter killed someone and, as they were lowing the body into the river, security enquired and daughter said ‘it’s alright, my mother’s just feeling sick’. Admitted as evidence of relationship between them because part of res gestae and wide general exception made it more reliable.
R v Morrison
Victim on the phone to F and said that ‘Blocky’ had just arrived (Morrison’s nickname) and F then heard the murder. F’s evidence admissible as res gestae.
