General overview of evidence

Question 1

What are the three main types of evidence? (give examples)

Answer 1

1. Testimony (oral or by affidavit)
2. Documents (photographs, video, certificates etc)
3. Real evidence (physical objects, demonstrations by witness, demeanour of witness, the appearance of persons age as evidence)

Question 2

What are the three main substitutes, or dispensation from, the normal presentation of evidence?

Answer 2

1. Judicial notice
2. presumptions of law or fact
3. Formal admissons

Question 3

What are the rules for documentary evidence? (hint 3)

Answer 3

1. Best evidence rule - Where a written document is tendered the original must be produced as it is the best evidence of it’s content, however a copy can be produced unless original has been lost or destroyed (s 51 CEA abolished; see also s 106 QEA for copies of business documents)
2. Where a document is offered as proof of facts asserted there tender must be justified by reference to a recognised exception to hearsay (i.e. s 84 QEA books of account, s 92-93 qea, s 93A QEA
3. Parole evidence rule - Where a transaction is fully documented…the rule prohibits use of extrinsic material to the document in question for the purpose of altering or contradicting its terms…however can use to explain or clarify words in the agreement. The rationale of the Rule being because the final contract represents a complete and final agreement between the parties the introduction of extraneous evidence (oral conversations etc) could contradict or modify the terms of the agreement…the rule promotes certainty and minimising potential for fraud ect.

Question 4

What is the best evidence rule, why does it exist, and does it apply to real evidence?

Answer 4

The original of a written document should be tendered as it is the best evidence of it’s content, however a copy can be produced where the original is destroyed or lost (NB s 51CEA abolished rule)

The rule exist to promote fairness and ensure reliability of documents.

Real evidence is not affect by the best evidence rule. A photograph or oral description is admissible instead of the object it’s self.

Question 5

Dispensation of evidence: Formal admission

What is a formal admission, and what effect does that have on the proceeding?

Answer 5

A formal admission occurs when a party concedes a fact in issue in pleadings or in open court (i.e. plea of guilty formal admission to all elements of the offence)

The party who bares the evidential burden is not required, and can not, adduce evidence of that fact. This is because the fact is not in issue, evidence of it is irrelevant, and therefore inadmissible.

Leave is required to withdraw formal admissions.

A court is not bound to accept formal admission where it considers that it is untruthful, or presents a fiction that the parties may find convenient to maintain (where admissions are contrary to evidence court can act on evidence)

Question 6

Dispensation of evidence: Judicial Notice

What is it, when does it not apply, provide examples, and what is the rationale.

Answer 6

Judicial notice maybe taken of a fact so notoriously known it would be pointless to insist on formal proof (Holland v Jones; s 144 CEA).

Example: Christmas day is 25 December, cannabis is known as grass, or well know geographical locations.

The court decides whether the dispensation of proof should be granted if there is a reasonable dispute about the fact in question.

The court has no discretion and must take judicial notice in some cases s 41-43A QEA

Question 7

Dispensation of evidence: Rebuttal presumptions of law

Answer 7

A rebuttal presumption of law is a partial dispensation from adducing circumstantial evidence.

Once certain facts are established the court must draw an inference unless proof to the contrary is presented (i.e. presumption of innocence until proven guilty, presumption of doli incapax, presumption of death if missing for 7 years, a confession improperly obtained if induced, or letter was posted at the time of post mark).

Question 8

Who is competent to give evidence?

Answer 8

Every person, including a child, is competent to give evidence in a proceeding or on oath (s 9 QEA; s 12 CEA)

Question 9

Where a party challenges a witnesses competency to give evidence what must the court be satisfied of?

Answer 9

Whether the witness is able to give an intelligible account of events which the witness observed or experience (s 9A QEA; see also s 13 CEA)

Question 10

Can an expert give evidence about a witnesses ability to give evidence?

Answer 10

s 9C QEA - Yes if court is consider s 9A matter an expert evidence is admissible about the persons or child’s level of intelligence including…their ability to give reliable evidence

see also s 13(8) CEA

Question 11

Who is compellable in a civil proceeding?

Answer 11

s 7 QEA - each party to a proceeding is competent and compellable to give evidence in the proceeding.

Question 12

Does the spousal privilege rule exist?

Answer 12

Yes in QLD - s 7(2); s8(2)-(3) abolished rule - husband or wife is compellable in both civil and criminal proceedings.

Qualified in CEA - s 18(2) in a criminal proceeding a spouse, partner, parent, child may object to giving evidence…however the court must be satisfied ss(6) likelihood of harm and nature and extent of harm outweighs the desirability of having to give evidence.

Question 13

Is a person charged competent and compellable to give evidence?

Answer 13

s 8 QEA; s 17 CEA - Each person charged is competent to give evidence but is not compellable to do so.

Question 14

Is a co-accused competent and compellable to give evidence in a proceeding for a person charged?

Answer 14

S 8(1) QEA – An alleged co-offender who has been acquitted, convicted, or is being tried separately is not a ‘person charged’ for the purpose of section s 8, and is competent and compellable to give evidence at the hearing of the suspected co-offender.

However, an alleged co offender may claim privilege with respect to any offence not yet established, and a previous acquittal cannot be questioned.

Question 15

What is s 10 QEA?

Answer 15

s 10 QEA - A witness who is compelled to give evidence can refuse to answer which would self incriminate

(2) a defendant who elects to give evidence liability to answer the question is governed by s 15.

Question 16

What are the rules for examination in chief? (hint 4)

Answer 16

(1) must not ask leading questions unless court gives leave, introductory matter to the witnesses evidence, no objection, question about a matter not in dispute (see s 37 CEA)

(2) Party must not impugn the credit of own witness (see also s 17 QEA; s 38 CEA)

(3) A party must speak from memory and not use a document to revive own memory, unless court gives leave to allow witness to review a contemporaneously made note once memory is exhausted, however can not without leave of the court read document into the record (see s 32 CEA; s33 CEA evidence of police officers)

(4) Questions evidence must relate to issue in trial and not merely accrediting of the witness or another witness (i.e. good character evidence, prior consistent statements, accrediting own witness (good memory, eye sight)) - no self sucking

Question 17

What are the rules for cross examination? (Hint 7)

Answer 17

(1) Leading questions are permitted (s 42 CEA)
(2) Dose not need to be limited to topics raised in EIC
(3) hearsay rule applies in cross examination
(4) Brown v Dunn
(5) Finality rule: An answer to a collateral question (only going to credit) may not be rebutted…unless it is about (1) criminal history (2) bias (3) prior inconsistent statements (4) prior false complaints. The rule exists as a case management device to limit duration of hearings etc… (see also 20 QEA)
(6) must not ask improper questions (s 21 QEA; s 41 CEA)
(7) counsel must not communicate with their witness under cross examination

Question 18

What is the rule in Brown v Dunn? Why does it exist, what happens if it is not complied with, and can a party waive the right to…(5 points)

Answer 18

1. Where a party intends to contradict the evidence of a witness, by submission or evidence, the party is first required to put the contradictory evidence to the witness during cross examination to allow the witness a fair opportunity to comment on the evidence.
2. The rule also allows the court to assess evidence and it places the other party on notice to call any supporting evidence.
3. (1) Where there is noncompliance with the rule the court can refuse the party tendering contradictor evidence or submissions, however the court may recall the witness to allow the party to comply (see s 46 CEA leave to recall witness), and (2) Creditable evidence which is not challenged is taken to be accepted.
4. In exceptional circumstances, noncompliance with the rule may allow adverse inference to be drawn against the defendant’s credit (i.e. ‘recent invention’).
5. Where a parties failure to object to noncompliance does amount to a waiver of the rule. The judicial officer still must ensure a fair trial which includes ensuring a witness is treated fairly especially where judge is asked to make a finding impeaching witnesses’ credit (bale v mills).

Question 19

Can a party waive the right to object to the other parties non compliance with Brown v Dunn?

Answer 19

Bale v Mills - There can be no waiver of compliance with brown v dunn because of the overriding duty to ensure a fair trial including ensuring a witness is treated fairly when the judge is asked to make findings impeaching the witnesses creditability.

Question 20

What is permitted in re-examination?, and what is it’s purpose? (hint 4)

Answer 20

(1) Must arise out of evidence given in cross examination;

(2) Collateral questions are permitted (i.e. witness says she detests the dft…permissible to ask why) (s 108 CEA)

(3) Where a cross examiner raises recent invention (change of story between statement and trial) re-examiner may lead evidence of prior consistent statement (s 101; S 102 QEA)

(4) The purpose is to explain, repair, or improve witnesses evidence once cross examination is completed.

Question 21

Who bares the onus of proof? (evidential burden)

Answer 21

Generally the party who initiated the proceedings, Plaintiff, prosecution, or applicant, bares the onus to adduced evidence of every essential element of the cause of action (prima facie case).

Failure to do so may result in a ‘no case’ submission for dismissal of the proceeding.

Question 22

Where the prosecution case is circumstantial what is the test to determine whether the onus of proof has been satisfied?

Answer 22

Test is whether there is evidence which a jury could convict on, taking the crown case at it’s highest, and all inferences relied upon by the prosecution are reasonably open.

Question 23

When does the onus of proof reverse? Provide examples criminal and civil

Answer 23

Criminal: A defendant who pleads insanity, or diminished responsibility bares the onus of proof. Prosecution must negate BRD.

Civil: Where the respondent raises fraud, contributory negligence etc respondent must adduce evidence

Question 24

Criminal matter: Where the defendant bares the onus of proof…can the prosecution wait to see whether the defendant goes into evidence before calling any evidence to rebut what is raised? (i.e. case splitting)

Answer 24

No - The Crown must call all it’s evidence and cannot split its case by calling evidence in reply where it could have been anticipated the evidence was to be called by defence (i.e. provocation, duress, ect) unless there is exceptional circumstances (R v Shaw)

Question 25

What is the standard of proof in a criminal matter?

Answer 25

The prosecution must establish all elements on which it bares the onus of proof beyond reasonable doubt (Woolmington v DPP; s 144 CEA).

Question 26

What is the standard of proof in a civil matter?

Answer 26

The civil standard of proof is reasonable satisfaction (balance of probabilities) of the facts in issue, however the strength of the evidence required varies according to (1) gravity of the allegation, (2) its improbability, and (3) the consequences of an affirmative finding. CEA 140

Question 27

What is the Briningshaw v Bringinshaw standard?

Answer 27

The civil standard of proof is the balance of probabilities however the strength of evidence required varies according to (1) the seriousness of the allegation (2) its inherent improbability and (3) the consequences of an affirmative finding (briginshaw; reasonable satisfaction).

Question 28

What is the standard of proof in a voir dire?

Answer 28

s 142(1) CEA in any proceeding the court is to find that the facts necessary for deciding a question whether the evidence is to be admitted or not have been proved if it is satisfied that they have been proved on the balance of probabilities...however can take into account briginshaw factors ss(2) Bonus point proceed for voir dire s 189

Question 29

What is the standard of proof in a contempt of court proceeding?W

Answer 29

Beyond reasonable doubt, whether the contempt be classed as criminal or civil (Bruder Expedition PTY LTD v Leight)

Question 30

What is standard of proof at a contested facts sentence?

Answer 30

s 132C balance of probabilities, however can take into account consequences of the finding of the allegation to be true

Question 31

What is the standard of proof in civil penalties?

Answer 31

Generally civil standard of proof with briginshaw considerations, however some legislation requries criminal standard of proof

Question 32

What is the standard of proof in disciplinary tribunals?

Answer 32

The standard of proof is reasonable satisfaction when regard is had to (1) the gravity of the allegation (2) its improbabiltiy and (3) the consequences of an affirmative finding.

Question 33

What is the standard of proof when onus is on defence?

Answer 33

Civil standard applies balance of probabilities

Question 34

What are the two types of circumstantial cases?

Answer 34

(1) links in a chain: Where one item evidence is not accepted the chain fails (2) strands in a rope: Some circumstantial items may be reject, however those remaining can still support a conviction.

Question 35

What is circumstantial evidence?

Answer 35

Evidence of a fact which infers the existence of a fact in issue.

Question 36

What is direct evidence?

Answer 36

Evidence of a fact which directly proves a fact in issue.

Question 37

What are two considerations the court can have regard to when assessing the weight of evidence?

Answer 37

1. Where it is corroborated by other evidence 2. Jones v Dunkle considerations

Question 38

What is corroborative evidence? and who decides whether it is corroborative?

Answer 38

Corroboration is independent evidence which supports a material part of a witnesses testimony...it must be admissible its own right but need not support the entire story. the tier of fact will decided whether it is accepted or rejected

Question 39

What are examples of corroborative evidence?

Answer 39

May consist of real evidence such as injuries consistent with an assault, or distressed condition evidence... separate high similar experiences of witnesses with the same person are mutually corroborative (subject to collusion) Other: Admission by words, flight, attempts to bribe witness etc

Question 40

What is the rule in Jones v Dunkle? What is the rationale? What is consequence of non-compliance?

Answer 40

Where a party is required to explain or contradict something the unexplained failure to do so by calling, giving, or tendering evidence allows court to draw the inference the uncalled evidence would not have assisted the parties case. In other words, the rule is not a source of evidence but a practical consideration when conflicting evidence is being assessed. The inference is allowed to be drawn because if the evidence would have assisted it would have called it. The weight of the opponents case may be enhanced by an unexplained failure.

Question 41

When may a Jones v Dunkle submission fail?

Answer 41

1. Absent witness would be hostile towards the party in question 2. witness was equally accessible to each party; 3. The party whom the argument is raised simply does not know who the witness will say; 4. Unavailability or death of witness

Question 42

Does Jones v Dunkle apply in criminal proceedings?

Answer 42

Yes - It is not confined to civil proceedings however its application in criminal proceedings is limited to the prosecution's failure to call a material witness does not apply to the accused failure to give or call evidence unless exceptional circumstances (Dyers v The Queen; Azzopardi)

Question 43

Before the rule of Jones v Dunkle can properly invoked there must be evidence which calls for an answer...yes or no?

Answer 43

yes

Question 44

If five people attend a meeting and only some are called...a jones v dunkle inference will not arise unless those who were not called would add something of significance...true or false

Answer 44

True - Lennon v South Australia

Question 45

What are the rules for questioning a person charged with an offence? (QEA)

Answer 45

s 15 (1) where a person charge gives evidence they can not refuse to answer a question on the basis it would tend to incriminate (2) a defendant shall not be asked any question tending to should that has committed, or been convicted of an offence other than that which they are charged, or is of bad character unless (a) i.e. similar fact evidence ... (c) counsel asks a question with a view establishing good character evidence or the conduct of the defence is such that it involves imputations on the prosecutor or witness of prosecution (3) must seek leave of the court before asking any of the above

Question 46

Can counsel cross examine witness regarding previous convictions? (QEA)

Answer 46

s 16 QEA - Yes can question witness about whether they have been convicted of an offence...and if they deny it you can prove such conviction...(s 53 QEA) s 15A QEA - must seek leave to question about convictions subject criminal law rehabilitation act

Question 47

How far may party discredit's own witness? (QEA)

Answer 47

s 17 QEA - A party shall not impeach the credit of it's own witness by general evidence of bad character, however may with leave of the court prove the witness has made a statement inconsistent with other testimony (adverse witness application - a disappointing witness is not enough...must demonstrate an unwillingness to tell the truth)

Question 48

During cross examination how is proof of a previous inconsistent statement given? (QEA)

Answer 48

s 18 QEA - During cross examination of a witness regarding a previous statement inconsistent with current testimony does not admit the previous statement proof may be given the statement was made, however before proof can be give the circumstances of making the statement must be put to the witness

Question 49

Can a witness be cross examined on a previous written statement with being shown it? (QEA)

Answer 49

s 19 QEA - A witness can be cross examined regarding a previous written statement without being shown it, however if it is intended to contradict the witness attention of the witness must be first taken to the contradictory parts before such contradictory proof is given.

Question 50

When can a court disallow a question as to credit? (QEA)

Answer 50

s 20 QEA - The court may disallow a question as to credit if the court considers the answer would not materially impair the courts confidence in the reliability of the witnesses evidence.

Question 51

What section of the QEA and CEA deals with whether a question is an improper question?

Answer 51

s 21QEA; s 41CEA

Question 52

Where the defendant does not give evidence can an adverse inference be drawn against them?

Answer 52

Yes - Where the prosecution case against the defendant could be explained or contradicted by facts only known by the defendant, the defendant's failure to offer those facts strengthens the inference of guilt urged by the prosecution. however the failure CANNOT be used resolves doubts about the witnesses or drawn conclusions from any evidence (azzopadi)... The rationale is that if the evidence would have assisted the accused would have given it (similar to jones v dunkle; R v Dyers).

Question 53

What is the rationale for the rule in Jones v Dunkle?

Answer 53

Jones v Dunkel acts as a deterrent for parties who may decide to not call or tender evidence which may damage its case. This in turn assists the court in deciding the issues in despite and is a matter of fairness for the other party.