BAR EXAM OCT 2023 *NEW* Flashcards
Is credibility evidence admissible under the common law and the cth evidence act?
There is no distinction so far as relevance is concerned between the credibility of the witness and the facts to which he or she deposes Palmer v R 1998
Can rulings made on evidence be reversed at a later stage of trial?
Rulings on evidence in one part of the trial can be changed at another point – R v Rogers
What are four ways you can deal with wrongly admitted evidence?
If evidence is admitted, but later in the trial it turns out to be inadmissible:
1. Strike it out
2. withdraw it
3. ignore it, without saying anything to the jury about it (only if evidence is of little weight, or little prejudicial effect)
4. Specifically address it with the jury – tell them that they cannot have regard to that inadmissible evidence and why
Are prior consistent statements admissible in EIC? If not, are there exceptions?
Prior consistent statement is not admissible in EIC – R v Connolly.
Exceptions:
- Preliminary complaint evidence – s 4A Criminal Law Sexual Offences Act
Preliminary complaint under CEA – it is an exception because it is a statement proving not that it happened, but proving what was said.
- Previous consistent statements as a part of the res gestae: Section 66A CEA provides hearsay exception for contemporaneous representations about a persons health, feelings, sensations, intentions, knowledge or state of mind);
- rebut allegations of a recent invention under s 101(1)(b) of the QEA
Can a co-accused give evidence against one another. Is the position different for co-conspirators?
- An accused is competent, but not compellable to give evidence in his own trial. The same is to be said for any co-accused – they can give evidence, but they do not have to. S 8 QEA.
- An accused who chooses to give evidence against his co-accused IS NOT WITNESSES FOR THE CROWN – R v Payne.
- An accused is not a competent witness for the Crown (Rowan v Jones).
- A defendant can give evidence against a co-accused only if their defence is consistent with the co-accused’s defence and does not implicate the co-accused in any way.
(In other words, the defendant can give evidence that supports their own defence without implication of the co-accused.)
The court held that allowing a defendant to give evidence against a co-accused that implicates the co-accused would be unfairly prejudicial and would violate the co-accused’s right to a fair trial.
But if one pleads guilty, and their matters are resolved, then they are competent and compellable.
CO-CONSPIRATORS – Tripodi; Ahern. In common purpose – not after event, before it, the planning
Initially evidence may only be used as proof of the alleged statement – Ahern; Tripodi
Once there is reasonable evidence from which an agreement can be inferred, the acts and declarations of the participant in furtherance of the agreement may be used to prove not only the existence of the conspiracy, but also the defendants participation in it.
“Reasonable evidences” implies an element of judicial discretion to limit the use which might be made of the co-conspirators acts and declarations when its admission might operate unfairly against an accused.
What is the best evidence rule and what is the most common exception?
- The best evidence rule: a party relying on the words of a document for any purpose other than that of identifying it must, as a general rule, adduce primary evidence of its contents.
- The most notable exception is public documents, the contents of which may be proved by a production of a copy.
Best evidence rule: Myers v DPP (car rebadging case)
The evidence of the landlord in relation to the lease is inadmissible unless the lease is produced by him – verified by him – and once in evidence, then there can be questions about the lease. You’d then go to s 92 QEA which is an exception to the hearsay rule re document, if made by landlord (signed by him s 92(4) QEA, a copy of which can be tendered under s 116 QEA. As soon as the lease is mentioned, you need to produce it.
* The evidence can be rejected by the court under the discretion in s 98 QEA.
What is the CEA equivalent of s 95 QEA?
Section 146 – Evidence produced by a process, machines or other devices.
What is the common law test for declaring a witness adverse?
McClelland v Bower (R v Hayden & Slattery) – withholding material evidence or unwilling to tell the whole truth in answer to non-leading questions for the advancement of justice. Need to show affirmative hostility.
What is the difference between weight and admissibility?
Admissibility is a matter of law determined by the trial judge where as weight is a matter of fact determined by the jury.
The piece of evidence has to be admissible before any weight can be attached to it. A piece of evidence might be admissible for one reason and then as the trial progresses another item of evidence might render it likely to have less weight attached to it. (Evans)
How is probative value assessed?
Probative value is generally assessed by taking the evidence at its highest without assessing its reliability (IMM).
An insurance company is bringing an action against the driver of a vehicle who is alleged to deliberately driven in to a pedestrian who was subsequently injured
The driver gave an interview with police at the time of the incident. Since he has passed away from an unrelated illness:
Can his statement be tendered?
Can his criminal history be tendered?
Can evidence as to his credibility be tendered?
Can his statement be tendered?
The recording is a statement under s92(4) because a recording done completed with assuming this prima facie enlivens s92(1) which further requires that a) the witness is called in a proceeding or b) the document forms record of an undertaking. Here the statement maker cannot be called, s92(2) where the maker is dead therefore prima facie the evidence is admissible and can be tendered.
Can his criminal history be tendered?
S 79(2) conviction as evidence.
Evidence of the conviction is admissible to the same extent as if the maker/supplier had been as a witness
S 94(2) with leave of the court the criminal history is admissible.
S 81 evidence identifying the particulars of a conviction
Can evidence as to his credibility be tendered?
Yes under 94(1)(a) when a statement is tendered this section allows evidence to be admitted for the purpose of destroying or supporting that persons credibility as a witness
Can a copy of the statement be tendered if the original is destroyed?
Yes under section 97 for a statement but as a broad principle under s 116 upon satisfaction of the court a copy was taken from the original.
You are in the Supreme Court of Qld and you want to tender a companies financial documents how?
Under the QEA section 83 defines book account as any document used in the ordinary course of any undertaking to record the financial transactions. Under section 84 entries in book account to be evidence, including copies.
Would a copy of an invoice be admissible under the QEA?
Yes document from the ordinary course of recording financial transaction so can prima facie under section 83 be tendered under s84 – copy under s84(b)
Does a cross examiner have to tender a document produced in xxnation?
CEA – s 45(5) – No
QEA – if a document is proved by ss 18 and 19, then the court shall admit it into evidence if it would be admissible under rules of admissibility.
