EVIDENCE (NEW) Flashcards
(172 cards)
1
Q
When is evidence relevant under s 55 of the Evidence Act?
A
- Does the evidence make a fact in issue more or less probable?
- ✅ YES → Relevant
- ❌ NO → Not relevant → Inadmissible (s 56)
2
Q
What are the three stages of determining admissibility?
A
- Relevance (s 55)
- Exclusionary rules (e.g. hearsay, opinion)
- Discretionary/judicial exclusions (e.g. ss 135–137)
3
Q
What triggers the relevance rule under s 55?
A
- There is a fact in issue
- The evidence may affect its probability → Directly or indirectly
4
Q
A witness testifies the accused looked nervous during arrest. Is this relevant under s 55?
A
Yes – If nervousness makes it more probable the accused had a guilty conscience, the evidence has probative value under s 55.
5
Q
Evidence is relevant under s ___ if it could rationally affect the assessment of the probability of a fact in issue.
A
s 55
6
Q
What did the High Court say in Dhanhoa v R about the Evidence Act’s aims?
A
- EA aimed to simplify evidence rules, but complexity remains
- Many decisions still require common law interpretation
7
Q
Front: What did Papakosmas v R confirm about the relationship between relevance and credibility?
A
- Relevance is not the same as credibility or reliability
- A statement can be relevant even if it’s not reliable, if it affects the probability of a fact in issue
8
Q
When can the court exclude evidence under s 135?
A
- If the probative value is outweighed by risk of:
- Unfair prejudice
- Misleading/confusing the jury
- Wasting time
9
Q
What triggers discretionary exclusion under s 135?
A
- The evidence is relevant, but:
- Might prejudice or confuse the jury
- Has low probative value
10
Q
When can a document be presented without a witness?
A
- Is the document self-authenticating under UEL?→ YES → Use s 58(1): courts can infer authenticity from context.
- Is it being presented without oral testimony?→ YES → Use s 21.
- Is there uncertainty?→ Use s 183: court may examine the document to determine admissibility.
11
Q
When can document contents be adduced without the original?
A
- Is the original unavailable? (s 48(4))→ YES → Is it:
- lost?
- destroyed?
- impractical to produce?
- with another party who refuses?→ If yes → You may use:
- Summary (s 48(4)(a))
- Testimony (s 48(4)(b))
- Refreshed memory (s 32)
11
Q
When is a viewing (inspection) of real evidence allowed?
A
- Judge must order it (s 53(1))
- Judge must be satisfied that:(a) All parties have opportunity to be present(b) Judge and jury are present (s 53(2))
- Consider prejudice, fairness, time waste (s 53(3))
12
Q
What triggers the need for document authentication?
A
- If the document is presented in court
- If it is not clearly self-authenticating→ Must authenticate by:
- Witness (s 30) OR
- Inference (s 58(1))
13
Q
What triggers the use of s 32 for refreshing memory?
A
- Witness has made or reviewed the document at the relevant time
- Document used in court to aid memory
- Court gives leave (s 32(1))
14
Q
A witness refers to handwritten notes made after the event. Can they use them in court to refresh memory?
A
→ Only if court gives leave under s 32
→ Notes must have been made or adopted when memory was fresh
→ May trigger s 122(6): privilege may be lost if used to revive memory
15
Q
An original payslip is lost. A scanned PDF copy is tendered. Is this allowed?
A
→ YES, under s 48(1)(b) – copy produced by reliable means
→ Court may also infer authenticity under s 58(1)
→ No need for live witness if self-authenticating under s 21
15
Q
What is a “document” under the Evidence Act?
A
→ EA Dictionary & s 3.50:
Includes anything storing info (text, maps, emails, USBs, digital files)
15
Q
What’s the difference between real evidence and documents?
A
→ Document = record of information
→ Real evidence = object or physical thing (e.g., drugs, knife, barrel)
16
Q
What does “unavailable document” mean?
A
Under EA Dictionary – Pt 2 Clause 5:
- Lost after reasonable search
- Destroyed
- Impractical to produce
- Controlled by someone who refuses
- Risk of self-incrimination if produced
16
Q
What did Cassar & Sleiman (1999) establish?
A
→ Document (motel registration) was unavailable
→ Admitted via summary and oral evidence
→ Summary = s 48(4)(a), memory refresh = s 32, admission = s 69
17
Q
Under s ___ of the Evidence Act, a witness can use a document to refresh memory only with leave of the court.
A
s 32
17
Q
What was the issue in Athans v R?
A
→ Whether Snapchat messages were admissible as documents
→ Held: YES, via screenshots – permanence not essential if retrievable
17
Q
What did Gregg v R show about self-authentication?
A
→ PowerPoint slides admitted without a witness
→ Shows that modern documents can be authenticated by inference (s 58)
18
Q
When does Client Legal Privilege under s 118 apply?
A
- Is the evidence a confidential communication or document?
- Was it made between:
- Client and lawyer?
- Two lawyers for the same client?
- Client/lawyer and third party for litigation purposes (s 119)?
- Was it made for the dominant purpose of:
- Providing legal advice? (s 118)
- Providing legal services for litigation? (s 119)
→ If yes to all → Privilege applies unless lost or waived.
18
A summary of a document can be used if the original is too complex under s ___.
s 50
18
The court can infer document authenticity under s ___.
s 58(1)
19
How do you test if privilege applies to third-party documents? (s 119)
1. Is the communication/document confidential?
2. Was it made for the dominant purpose of litigation?
3. Is litigation pending, anticipated, or ongoing?
→ If yes → Privileged under s 119.
20
What are the steps to determine loss of privilege under s 122?
1. Has the privileged material been disclosed?
2. Was it disclosed voluntarily?
3. Was it inconsistent with maintaining confidentiality?
→ If yes → Privilege is waived.
21
What is the balancing test under s 126B for PCRP?
1. Is it a protected confidence (s 126A)?
2. Will adducing the evidence cause harm?
3. Are there alternative sources of evidence?
4. Is the probative value high?
→ Court balances these to decide if privilege should apply.
22
What does s 128 (Privilege Against Self-Incrimination) require?
1. Witness objects to giving evidence (s 128(1))
2. Court considers if objection is reasonable (s 128(2))
3. Court advises witness they do not need to answer (s 128(3))
4. If interests of justice require it, court may compel (s 128(4))
5. Court issues certificate protecting against future use (s 128(7))
23
What triggers Protected Confidence Privilege under s 126A–126D?
– Communication made to a professional (confidant)
– In the course of a confidential relationship
– Likely to cause harm if disclosed
→ Court balances harm vs probative value under s 126B.
23
What triggers the application of Client Legal Privilege?
– Confidential communication/document
– Made for dominant purpose of legal advice or litigation
→ Triggered if party objects and court finds s 118 or s 119 applies.
23
What triggers privilege against self-incrimination?
– Person is compelled to answer a question or give evidence
– They believe doing so would incriminate them
→ May object under s 128.
24
Anna’s call with her solicitor is recorded under warrant. Is it admissible?
→ Likely covered by Client Legal Privilege under s 118
→ If dominant purpose was legal advice → Privilege applies
→ Not waived by unlawful recording unless privilege is lost (e.g., under s 125 – crime/fraud).
24
Anna tells her psychologist details of her sexual assault. Can the Crown access her notes?
→ Possibly protected under s 126A–126B (Protected Confidence)
→ Requires balancing test: Is there significant harm? Is alternative evidence available?
→ If privilege upheld, notes are inadmissible.
25
Under s ___ of the Evidence Act, legal advice communications are privileged if made for the dominant purpose of providing legal advice.
Back: s 118
26
Front: Under s ___, communications made for litigation purposes are privileged.
Back: s 119
27
Front: Under s ___, privilege can be lost if it is waived by inconsistent disclosure.
Back: s 122
28
Front: The dominant purpose test was defined in Esso v Federal Commissioner of Taxation as the ________ purpose.
Back: ruling, prevailing, or most influential
29
What did Esso v Federal Commissioner of Taxation establish?
Defined "dominant purpose" as the ruling or prevailing purpose for legal advice or litigation → key test for applying client legal privilege.
29
What happened in R v Young (1999)?
A sexual assault counsellor refused to hand over notes and was jailed for contempt. This led to legislative creation of sexual assault communication privilege under the Criminal Procedure Act (NSW) ss 295–306.
29
What was decided in Mann v Carnell (1999) about waiver?
Privilege is waived when disclosure is inconsistent with maintaining confidentiality. The test focuses on whether the conduct objectively suggests waiver.
29
Can a witness give sworn evidence?
1. Do they understand the obligation to tell the truth?
→ If yes → must give sworn evidence (s 21)
→ If no → may give **unsworn evidence** (s 13(3)-(5))
- Court must explain the importance of truth and right to say “I don’t know” (s 13(5))
29
Is a person competent to give evidence under s 13 EA?
1. Can the person understand a question about a fact?
2. Can they give an answer that is understandable?
→ If **both yes** → competent (s 13(1))
→ If **either no** → not competent
→ Court can get expert opinion (s 13(8))
→ May use supportive measures (rephrasing, etc.)
29
Are they compellable as a witness?
Start with **general rule**: Everyone is presumed competent and compellable (s 12)
Then ask:
1. Are they the accused? → Not compellable in their own trial (s 17)
2. Are they a co-accused? → Not compellable if jointly tried (s 17(3))
3. Are they a close family member of the accused?
→ Can object to being compelled for prosecution (s 18)
→ Court does a **balancing test** (s 18(6)-(7))
4. Are they a judge/juror in the trial? → Not compellable (s 16)
30
What triggers the use of unsworn testimony?
→ The witness is competent to give evidence,
→ But **not competent to give sworn evidence** (s 13(3))
→ Must then receive the s 13(5) explanation by the judge
31
What triggers voir dire questioning?
→ Whenever **competence or compellability** is in doubt,
→ The court may use **voir dire** to assess admissibility (s 189 EA)
32
A child witness struggles to answer questions clearly but understands them. Can they testify?
→ Yes – under s 13(1), the key test is whether they **understand** questions and can give **understandable answers**
→ The **accuracy** of the answers isn’t the issue
→ This was upheld in *R v A2* where the child witness was found competent
32
What triggers the s 18 compellability exception?
→ Witness is a **close family member** of the accused
→ They object to testifying **for the prosecution**
→ Court must balance harm to the relationship vs importance of evidence (s 18(6))
32
When can the court exclude sworn evidence?
→ If the witness **doesn’t understand** the obligation to tell the truth (s 13(3))
→ Unsworn evidence may still be allowed with judicial guidance (s 13(5))
32
A witness doesn’t understand what an oath means. Can they testify?
→ Possibly – they **cannot give sworn evidence** (s 13(3))
→ But may give **unsworn evidence** if the court gives the s 13(5) explanation
→ See *R v GW* – child could tell right from wrong, but didn’t understand moral obligation
32
General rule for competence and compellability?
→ Every person is presumed competent and compellable (s 12)
→ Unless the Act provides otherwise (e.g., s 13, s 16–19)
33
The accused’s wife is called by the prosecution and objects to giving evidence. What happens?
→ s 18 applies: She is a **close family member**
→ Court must conduct a **balancing exercise** under s 18(6)
→ May excuse her from testifying if harm to the relationship outweighs probative value
34
Can a child give evidence?
→ Yes, if competent under s 13
→ Court assesses ability to understand questions and respond understandably
→ Supported with expert evidence if needed (s 13(8))
→ May give **unsworn evidence** (s 13(3)) if they don’t understand the oath
35
How can vulnerable witnesses be accommodated?
→ Via s 26 EA and CPA/Criminal Procedure Act
→ Use of:
- Screens
- Support person
- Video link
→ Pre-recorded testimony permitted in certain cases (e.g., *R v A2*)
36
Can demeanor be used to assess credibility?
→ Yes – facial expressions and physical presentation help in assessing testimony
→ But courts recognize it can mislead
→ In *Elzahed v Commonwealth*, inability to observe facial cues raised concerns
36
What did R v A2 establish about child witnesses?
→ Competence is based on **understanding**, not accuracy
→ Court allowed pre-recorded testimony to avoid retraumatizing the child
36
What did R v GW say about unsworn evidence?
→ Child knew the difference between truth and lies
→ But didn’t understand moral obligation = couldn’t give sworn evidence
→ Was allowed to testify unsworn under s 13(5)
36
What did Elzahed v Commonwealth say about observing witnesses?
→ Courts place value on **observing demeanor** (like facial expressions)
→ Wearing a niqab in court raised issues of assessing credibility
37
What principle was highlighted in Pell v The Queen?
→ Visual aids (e.g., animations) can distort evidence
→ Court ruled them inadmissible if they misrepresent testimony
38
Under s ___, every person is presumed competent and compellable unless otherwise stated.
s 12
39
Under s ___, a person is not competent to give evidence if they cannot understand or respond to questions about facts.
s 13(1)
39
Under s ___, a witness may give unsworn evidence if they cannot understand the obligation to tell the truth.
s 13(3)
40
Under s ___, close relatives may object to giving evidence for the prosecution in a criminal trial.
s 18
41
In R v GW, the child was found __________ to give sworn evidence.
not competent
42
Can a court draw an adverse inference from a party failing to call a witness?
1. Is it a **civil** case?
→ Yes → Adverse inference may be drawn (*Jones v Dunkel*)
→ No → Go to step 2
2. Is it a **criminal** case?
→ Yes → No adverse inference allowed (*Dyers v R*)
→ No → Proceed with general inferences
43
Can the accused's silence at trial be used against them under s 20?
1. Did the accused choose not to testify?
2. Is the prosecution commenting on that silence?
→ s20(1) prohibits this
3. Is the judge or defence commenting on silence?
→ s20(2): allowed, but cannot imply guilt
→ Must not be used as “make-weight” (*Azzopardi*)
44
What triggers consideration of the right to silence under s 20 EA?
- Accused chooses not to testify at their trial.
- Prosecution cannot comment (s20(1))
- Judge/defence may comment (s20(2)) but not in a prejudicial way
44
What triggers a Jones v Dunkel inference?
- Civil case
- Party fails to call evidence that would be reasonably expected
- Adverse inference = evidence would not have assisted that party’s case
44
When might the Weissensteiner principle apply?
- Circumstantial evidence
- Accused has knowledge only they can explain
- BUT: Cannot imply guilt unless evidence demands an explanation (*Weissensteiner*)
45
What did Jones v Dunkel establish?
In civil trials, failure to call a witness who’d be expected to give evidence may lead to the inference that the evidence would not help that party’s case.
46
Front: What did Dyers v The Queen confirm about silence and inference?
No adverse inference can be drawn in a criminal trial from the defence's failure to call a witness. Jury must not speculate.
47
Front: What principle came from Azzopardi v The Queen (2001)?
Accused’s silence at trial is not evidence of guilt. Silence cannot fill evidentiary gaps or contribute to proving guilt.
48
Front: How did Weissensteiner v The Queen (1993) approach silence?
Circumstantial case where only the accused could explain the evidence. Jury may draw inference if an innocent explanation would be expected—but can't infer guilt automatically.
49
Front: In a sexual assault trial, the accused does not testify. Can the prosecution comment on that silence?
No. s20(1) prohibits prosecution from commenting. Judge or defence may (s20(2)), but cannot suggest silence = guilt (Azzopardi).
49
Front: Under s __ EA, the prosecution cannot comment on an accused’s silence at trial.
Back: s 20(1)
50
Front: What was clarified in RPS v The Queen (2000)?
The prosecution bears the burden of proof, and silence by the accused must not be treated as guilt. Weissensteiner principle is very limited.
51
Front: In a civil negligence suit, a defendant fails to call their colleague who witnessed the event. What can the court infer?
Jones v Dunkel applies → court may infer that the witness would not have helped the defendant's case.
52
Front: A prosecutor fails to call a witness without explanation. Can the judge force them?
No. Prosecutor decides whom to call (R v Apostilides), though fairness is key. Judge may inquire (R v Kneebone), but cannot compel.
53
Front: The principle that silence cannot fill evidentiary gaps was confirmed in ______ v The Queen (2001).
Back: Azzopardi
54
Front: In _______ (1959), the High Court ruled that failure to call a witness in civil trials can support an adverse inference.
Back: Jones v Dunkel
54
Front: s ___ EA allows adverse inference from silence only in serious indictable offences with a special caution.
Back: s 89A
54
Front: When is evidence relevant under s 55 UEA?
1. Does the evidence make a fact in issue **more or less probable** than it would be without the evidence?
- If **yes** → relevant
- If **no** → not relevant
2. If relevant → **go to s 56**: Is it excluded by another rule (e.g., hearsay, opinion, etc.)?
54
Front: What is the 3-stage process for determining admissibility?
1. **Relevance** – Is the evidence relevant? (s 55)
2. **Exclusionary Rules** – Does another rule (e.g., hearsay) exclude it?
3. **Discretionary Exclusion** – Should it be excluded under s 135–137?
55
Front: What triggers the application of s 55?
- The evidence is being introduced to prove a **fact in issue**, and
- It could **rationally affect** the probability of that fact.
56
Front: What makes something a "fact in issue"?
- It’s a **fact that must be proven** by the party who bears the burden of proof.
- Examples: In a theft case, whether the accused stole the item.
57
Front: A witness says, “The victim ran out of the building crying after the party.” Is this relevant under s 55?
Yes – it could rationally affect the probability of whether the victim consented or was distressed afterward (a fact in issue in a sexual assault case like Papakosmas). Minimal probative value is enough.
58
What did Papakosmas v The Queen (1999) confirm about relevance?
- Expanded definition of relevance under s 55.
- Evidence of complaints was relevant to prove the truth of the allegation (not just credibility).
- *Key:* Relevance is a **low bar** – must only make a fact more or less probable.
58
Front: A police officer says “I recognise the person in the CCTV as the accused.” Jury has same footage. Is this relevant?
No – in Smith v The Queen, the High Court ruled it was not relevant because the jury was in just as good a position to assess the footage. It did not add probative value.
58
What did Smith v The Queen (2001) say about s 55 and police opinion?
- Police recognition evidence from CCTV **excluded**.
- Jury was equally able to interpret the footage.
- Reinforced that **real probative value** is needed – not just any connection.
58
What principle was reinforced in Evans v The Queen (2007)?
- Even if confessions are relevant, they can still be **excluded** under discretion (s 138) if **illegally obtained**.
- Courts emphasised the importance of **voluntariness and legality** in evidence gathering.
59
🟦 Front: How do you apply s 66 EA? (Criminal, maker available)
**🟩 Back:**
1. Criminal trial? ✅
2. Maker of statement is available? ✅
3. Statement made when **memory was fresh**? ✅
→ Then it’s admissible as an exception to hearsay
59
🟦 Front: How to apply the hearsay rule (s 59 EA)?
**🟩 Back:**
1. Is it a **previous representation**?
2. Is it made by a **person** (not a machine)?
3. Is it used to prove the **truth of what was said**?
→ If yes → **HEARSAY**
→ Inadmissible **unless an exception** applies
59
Under s __ of the Evidence Act, evidence is relevant if it could rationally affect the probability of a fact in issue.
55
60
🟦 Front: s 59(2A) Test for Implied Assertion
**🟩 Back:**
- Ask: **Did the person intend to assert** the fact?
- Look at **context** → s 59(2A)
→ If **not intentional**, it's **not hearsay**
60
🟨 Front: What triggers s 59 hearsay rule?
**🟧 Back:**
- A **previous out-of-court statement**
- Being used to prove the **truth** of the content
→ = Hearsay
→ = Inadmissible **unless an exception applies**
60
🟨 Front: What triggers s 60?
**🟧 Back:**
- Evidence is admitted for a **non-hearsay** purpose
→ Now the same evidence can be used for **truth of its content** too
60
🟫 Front: “He told me Sarah confessed.” Hearsay?
Yes. Used to prove Sarah confessed → hearsay under s 59.
60
🟨 Front: What triggers s 66?
**🟧 Back:**
- **Criminal case**
- Maker is **available to testify**
- Statement made while **memory fresh**
→ May be admissible for its truth
60
🟫 Front: “He said he’d kill me.” Used to show duress. Hearsay?
No. It’s not used to prove the threat was true, but to show how it affected the listener → not hearsay (see Subramaniam).
61
🟫 Front: “She said the bottle had poison.” Used to prove it had poison?
Yes → hearsay.
If used only to prove that **she said it**, not that it’s true → **not hearsay**.
62
“He was sobbing and said he was raped.” Used to show state of mind. Hearsay?
No → s 66A exception applies (emotions, health, state of mind).
63
What are the main hearsay exceptions in the EA?
Section Exception Type
s 60 Admitted for non-hearsay purpose → can be used for truth
s 63 Civil – maker unavailable
s 64 Civil – maker available
s 65 Criminal – maker unavailable
s 66 Criminal – maker available (fresh memory)
s 66A Statements about health, emotion, etc.
s 69 Business records
s 70 Tags and labels
s 71 Electronic comms
s 72 Traditional laws/customs
s 73 Family history
s 75 Interlocutory proceedings
s 81 Admissions
63
📘 Front: R v Hannes (2000)
Court may look at **context** to decide if a statement was intended to assert a fact.
→ Led to s 59(2A) EA being added.
63
Subramaniam v Public Prosecutor (1956)
Statement can be admissible **not for its truth**, but for **effect on the listener**.
→ Introduced idea of **non-hearsay use**.
64
📘 Front: Walton v R (1989)
Implied assertions ≠ hearsay under the EA unless there's **intention to assert**.
→ Clarified what counts as "asserted fact."
64
📘 Front: Papakosmas v R (1999)
**📙 Back:**
A **complainant’s statement** may be admissible **for credibility + truth**.
→ Confirmed s 60 allows dual use.
65
✏️ Front: Under s ___, hearsay evidence is inadmissible unless an exception applies.
Back: 59
66
✏️ Front: Under s 60, evidence admitted for a non-hearsay purpose can be used for its ___.
Back: Hearsay purpose (truth)
67
✏️ Front: A “previous representation” must be made by a ___.
Back: Person
68
✏️ Front: Subramaniam is authority for the rule that a statement can be admitted to show its ___ on the listener.
Back: Effect
69
✏️ Front: Under s 66, hearsay is admissible in a criminal case if the representation was made while the matter was ___.
Back: Fresh in memory
70
🟦 Front: How do you determine if credibility evidence is admissible under s 102?
**🟩 Back:**
1. Is it evidence about **honesty, reliability, or capacity** to observe/recall?
2. Is it being used **only to prove credibility**?
- If yes → **Inadmissible** unless exception applies (s 102)
- If also relevant for another purpose → see s 101A
71
🟦 Front: What’s the process under s 103? (Cross-examining any witness)
1. Is the evidence relevant **only to credibility**?
2. Could it **substantially affect** the witness’s credibility?
- If yes → Admissible (no leave required)
- High threshold: avoid unfair attacks
72
When can you cross-examine an accused about credibility under s 104?
1. Leave required (s 104(2))
2. But no leave needed if:
- Motive/bias
- Prior inconsistent statement
- Inability to recall
→ Must read with s 103 (still must substantially affect credibility)
73
When can prior consistent statements be used under s 108?
1. Only if **credibility was attacked**
2. Prior inconsistent statement admitted? ✅
3. Suggestion of **fabrication**? ✅
→ May admit a prior **consistent** statement
74
What triggers s 102 (credibility rule)?
- Evidence used **only** to prove credibility
→ Must fall under exception to be admissible
75
When do you consider s 101A?
- When evidence is relevant to **both credibility and another purpose**
→ May bypass the s 102 restriction
76
What triggers s 106?
- Witness **denies** a matter in cross-exam
→ Opponent may want to call rebuttal evidence
→ Requires **leave**, unless it relates to specific categories like bias or prior conviction
77
A witness denies bias. Can opposing counsel call another witness to prove bias?
Yes, under s 106(2) – bias/motive is one of the exceptions where no leave is required to rebut a denial.
78
Defence wants to cross-examine the accused about a prior dishonest act. What must they do?
Apply for leave under s 104(2). The evidence must substantially affect credibility (s 103).
79
Prosecutor wants to admit a prior consistent statement to restore a witness’s credibility after cross-exam. Admissible?
Maybe under s 108(3), if fabrication was suggested or prior inconsistent statement admitted.
80
Adam v The Queen (2001)
- Prior statement inadmissible for both **credibility + hearsay**
- Resulted in creation of **s 101A**
→ Dual-purpose evidence may be admissible if relevant for another purpose
80
R v Lodhi (2006)
- Reinforced **strict test** for admitting credibility evidence
→ Avoid irrelevant or unfairly prejudicial evidence
80
What are the 4 main exceptions to the credibility rule (s 102)?
Section Exception
s 103 Cross-exam of witness – must substantially affect credibility
s 104 Cross-exam of accused – leave required (unless motive, inconsistency, etc.)
s 106 Rebutting denials – leave or specific category
s 108 Re-establishing credibility – after attack (e.g., fabrication)
80
R v Shamouil (2006)
- Could substantially affect credibility” = **low threshold**
→ Evidence doesn’t have to definitely affect it — just capable of doing so
81
Under s ___, credibility evidence is inadmissible unless an exception applies.
102
81
Section ___ allows evidence relevant to both credibility and another purpose to bypass s 102.
101A
82
Section ___ allows rebuttal evidence after a denial in cross-examination.
106
82
Cross-examining a non-accused witness on credibility is allowed under s ___.
103
83
Section ___ allows a prior consistent statement if fabrication is implied.
108
84
When does s 60 apply to allow hearsay use of evidence?
1. Was the evidence admitted for a **non-hearsay** purpose?
2. Is it a **representation** made by a person?
3. Is it **relevant to another purpose** (e.g. credibility)?
→ Then s 60 allows it to be used for its **truth**
85
How does s 60 interact with s 101A?
1. Evidence admitted for **credibility**
2. Also relevant for another purpose (e.g. hearsay)
3. Use **s 101A(b)** → permits it
→ Now **s 60** can extend use to prove the truth of the representation
86
When is evidence excluded despite s 60?
- Even if s 60 applies, the evidence may still be excluded under:
- **s 135** (unfair prejudice/waste of time)
- **s 136** (limit use to certain purposes)
- **s 137** (criminal trials – exclude if unfair)
87
What triggers use of s 60?
- A previous representation
- Already admitted for a **non-hearsay** purpose
→ Can now be used for its **truth**
88
What triggers the reform debate on s 60?
- Use of **second-hand hearsay** or **assumptions in expert reports**
→ Raises risk of **unfairness** or misuse
89
What triggers judicial discretion to limit or exclude s 60 evidence?
- Risk of unfair prejudice (s 135/s 137)
- Multiple uses of the same evidence
- Strategic manipulation in litigation
90
A witness is cross-examined on a prior inconsistent statement. Can it now be used to prove the truth of what they said earlier?
Yes – s 60 allows it if it was admitted for credibility, now used for truth.
91
An expert psychiatrist gives an opinion based on what the client told them. Can that hearsay be used to prove the fact asserted?
Only if it's a representation, not just an assumption. If assumption → s 60 doesn't apply.
92
A statement is admitted to show a person was upset. Can it be used to prove why they were upset?
No – only admissible to show state of mind, not the truth of what upset them unless s 60 applies.
93
What was Proposal 7–2 (ALRC)?
- Clarify that s 60 applies to **all hearsay**, including remote
- Restore intention of ALRC
- Still subject to s 135–137 exclusions
94
Lee v The Queen (1998)
- Witness’s police statement used for hearsay + credibility
- HCA ruled it **inadmissible for truth**
→ Prompted s 60 reform → allows second-hand hearsay
95
Papakosmas v The Queen (1999)
- Recent complaint used for **credibility**
→ s 60 allowed it to also prove **truth** of complaint
→ Confirmed s 60 applies to dual-purpose evidence
96
Shepherd v R (2011)
- Limits on using second-hand inference evidence
→ Confirmed s 60 still requires proper reasoning pathways
97
R v Hannes (2000)
- Led to s 59(2A): courts can assess **intent to assert** based on context
→ If no intent, then it’s **not hearsay** and s 60 doesn’t need to apply
98
Section ___ allows evidence admitted for a non-hearsay purpose to be used for its truth.
60
99
Section ___ defines hearsay and generally excludes it unless an exception applies.
59
100
Under s ___, courts can exclude evidence if it would cause unfair prejudice or waste time.
135
101
Lee v The Queen led to reforms to clarify the scope of s ___.
60
102
s 60 does not apply to ___ in criminal matters.
Admissions
103
Prompt: Is the evidence being tendered an opinion intended to prove the fact it asserts?
YES → Start at s 76(1) UEA: Opinion evidence is inadmissible unless an exception applies.
NO → Consider whether it's being used for a non-opinion purpose (e.g. s 77 – explaining conduct/state of mind).
104
Prompt: What is the legal definition of opinion evidence under the UEA?
Response: An inference drawn from observed and communicable facts or data (Lithgow City Council v Jackson [2011]; Quick v Stoland [1998]).
105
Prompt: Under s ___ of the Evidence Act 1995, opinion evidence is not admissible to prove the existence of a fact about which the opinion was expressed.
Response: 76
106
Prompt: What did the court decide in Dasreef Pty Ltd v Hawchar [2011] HCA 21 about expert evidence?
Response: Expert evidence must be wholly or substantially based on specialised knowledge from training, study, or experience. The opinion was excluded for lacking this connection.
107
Prompt: A police officer testifies that the accused was “definitely the driver” after reviewing CCTV. Admissible?
Response: Likely inadmissible unless the officer has relevant expertise under s 79. See Smith v The Queen (2001).
108
Prompt: If lay opinion is offered, what are the requirements under s 78?
Response:
Based on what they saw/heard/perceived directly
Necessary for an adequate account of that perception
109
Prompt: What test is applied to determine if a field of knowledge is “specialised”?
Response:
Frye Test – General acceptance in the field
Daubert Factors – Peer review, falsifiability, error rate, standards
Velevski Test – Recognised and reliable body of knowledge
109
Prompt: s ___ of the Evidence Act permits expert opinion if based on specialised knowledge.
Response: 79
109
Prompt: What problems can arise from relying on expert evidence?
Misuse → wrongful convictions (Chamberlain)
Lack of objective standards (Makita v Sprowles)
Jury deference → undue weight to flawed opinions
109
Prompt: Is the evidence being used to show that two or more events were so similar it’s unlikely they happened by chance?
Response:
YES → Coincidence (s 98):
Was notice given (s 98(1)(a))?
Does it have SPV (s 98(1)(b))?
If criminal case → apply s 101 balancing test.
Evidence must not suggest pure propensity (s 98 purpose = improbability of chance).
110
Prompt: Contrast outcomes in R v Morgan [2011] and Honeysett v The Queen [2014] on body mapping.
Response:
Morgan: Excluded – no real expertise
Honeysett: Admitted – anatomical expertise supported s 79 applicability
111
Prompt: Is the evidence being adduced to show a person has a pattern of behaviour, thought, or state of mind?
Response:
YES → Tendency (s 97):
Was notice given (s 97(1)(a))?
Does it have significant probative value (SPV) (s 97(1)(b))?
If criminal case → apply s 101 balancing test
NO → Consider coincidence (s 98) or non-propensity purpose (s 95).
112
Prompt: What is the difference between tendency and coincidence evidence?
Response:
Tendency: Suggests a person has a propensity to act/think a certain way.
Coincidence: Suggests improbability of repeated events happening by chance.
Note: Coincidence ≠ coincidence rule – courts look at SPV, not actual probability of coincidence.
113
Prompt: Under s ___, tendency evidence must be preceded by notice and must have significant probative value.
Response: 97
114
Prompt: How did Hughes v The Queen [2017] clarify tendency evidence?
Response:
No strict similarity required – SPV may exist without a pattern.
Similarity still contributes to probative value, but is not essential.
Endorsed broader approach to admissibility.
115
Prompt: The prosecution alleges the accused groomed children online before abuse. Past chat logs with other children are offered. Admissible?
Response: Likely admissible under s 97A, as sexual interest in children is presumed to have SPV in child sexual offence trials.
116
Prompt: Is the tendency/coincidence evidence being introduced in a child sexual offence case?
Response:
YES → s 97A applies:
SPV is presumed (but rebuttable with “sufficient grounds”).
Court cannot exclude for listed differences (age, timing, etc.) unless exceptional.
117
Prompt: What factors cannot be used to rebut the SPV presumption under s 97A unless exceptional?
Response:
Time lapse
Differences in relationship, act, context, age/sex of child
Generality of the alleged tendency
Lack of distinctive features
118
Prompt: In criminal proceedings, under s ___, tendency or coincidence evidence from the prosecution must have PV that outweighs prejudice.
Response: 101
119
Prompt: Compare Pfennig v The Queen (1995) and Ellis v The Queen (2003) on admissibility thresholds.
Response:
Pfennig: Only admissible if no rational innocent explanation
Ellis: s 101 replaces Pfennig in NSW, but Pfennig remains persuasive guide
120
Prompt: What safeguards prevent overuse of tendency and coincidence reasoning?
Response:
Notice requirements (s 97(1)(a), s 98(1)(a))
SPV filter
Balancing test (s 101)
Judicial warnings (s 95, Toalepai v R)
Limits on collusion arguments – s 94(5): courts cannot assume collusion to discount SPV
121
Prompt: How was coincidence used in Kathleen Folbigg’s case?
Response:
Four infant deaths presented as “astronomically improbable” → used as coincidence reasoning under s 98.
Diaries used as tendency under s 97 → inferred capacity for infanticide.
Later genetic evidence (CALM2 mutation) highlighted danger of excluding innocent hypotheses.
