Cases Flashcards
R v Kneebone
Prosecutor duties, did Not call unreliable witness, breach of BR 83, 90, - could have been granted leave and called via Unfavourable witness s 38 EA
SH v R
Capacity and s 13(5), EA
Instruction not given by judge to complainant under s 13(5)
Conviction set aside for non-compliance with s 13(5); strict compliance required
Browne v Dunn
If opponent’s witness gives evidence of a fact and you are going to call a witness to contradict that fact - it requires that you put the contradictory fact to your opponent’s witness during cross-examination.
National Australia Bank v Rusu
Authenticity of documents material to their admissibility
Subsequently rejected in ACCC v Air New Zealand (No 1) (2012); current status unclear
Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448
Authenticity of documents not material to admissibility
Rejected National Australia Bank v Rusu; current status unclear
Smith v the Queen
No discretion to be exercised in determining relevance
Identification evidence of police irrelevant, as incapable of rationally affecting assessment by jury of fact in issue
Lee v the Queen
60 Exception: evidence relevant for a non-hearsay purpose. Evidence of prior inconstant statement relevant only for non-hearsay purpose. Lower Courts wrongly used evidence made in statement, as the truth being intended to be asserted where s60 operates merely as a gateway for evidence not to be used as truth of intended but that statements were made. S60(2) modifies Lee in allowing second hand hearsay. S60(3) relevant to criminal admissions which must be first hand.
Graham v The Queen
s 66, EA and prior complaint evidence
Pre-dated enactment of s 66(2A); s 66(2A) has largely overruled Graham
Adam v The Queen
Evidence “unfavourable” to a party will include evidence that is merely unhelpful to that party
Assessment of relevance assumes that evidence will be accepted
Prior inconsistent statement relevant to (inadmissible) hearsay purpose, and hence not just relevant to credibility (Finding modified by enactment of s 101A)
Papakosmas v the Queen
Circumstances in which statement is made might make it probative of facts asserted (and hence relevant for the purposes of s 55)
Evidence is not unfairly prejudicial merely because it increases the likelihood of conviction
Unfair prejudice can include procedural disadvantages and risk of use of evidence on improper, emotional basis
Esso Australia Resource Ltd v Commissioner
‘Dominant purpose’ test adopted as test for privilege at common law
Mann v Carnell
Test for waiver of privilege: is conduct inconsistent with continued maintenance of privilege?
Stanoeski v The Queen
s 192(2) matters must be taken into account by court in granting leave or giving directions 192 LEAVE, PERMISSION OR DIRECTION MAY BE GIVEN ON TERMS
R v Ellis
s 101 calls for balancing exercise to be conducted on the facts of each case
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
Case: R v Ellis (2003) (NSWCCA)
Pfennig (propensity evidence inadmissible if rational view of evidence consistent with innocence) does not apply to Evidence Act ss 97-98 or 101
• Appeal by D against alleged misuse of tendency and coincidence evidence (and wrongful admission of that evidence)
o D convicted of break and enter offences
o Unusual modus operandi (removal of plate of glass in particular manner)
o Shops and goods targeted in similar location and similar types respectively
• Tendency evidence admitted at trial under s 101(2): probative value found to substantially outweigh prejudicial effect
• Pfennig v The Queen (1995)
o Common law position on propensity evidence
o Court must determine whether there is a rational view of the evidence that is consistent with the innocence of the accused prior to admission
same test as circumstantial evidence
o only if no such rational view consistent with innocence will probative value outweigh prejudicial effect
hence, ‘no rational explanation’ test for use of propensity evidence
• Question: does Pfennig apply to s 101?
o Held: EA intended to cover field and exclude common law ‘propensity evidence’ doctrines
o divergence in language and definitions between EA and common law
• Held: Pfennig inapplicable to EA s 101
o ‘no rational explanation’ test inapplicable to balancing exercise under s 101(2)
• Held: s 101 calls for balancing exercise to be conducted on the facts of each case
o There may be cases where it would not be open to conclude that the statutory test for admissibility is satisfied unless the common law test is also satisfied
that is, cases where prejudicial effect is so strong that in order for probative value to substantially outweigh prejudice there must be no rational view of the evidence consistent with innocence
• Appeal dismissed
Jones v The Queen
Hoch (tendency evidence should be excluded if reasonably capable of explanation on basis of concoction) does not apply to EA
Jones v Dunkel
If witness in party’s ‘camp’ not called, inference can be drawn that evidence would not have supported that party
Dyers v The queen
Jones v Dunkel does not generally apply in criminal law
Lithgow City Council v Jackson
Purported “opinion” falling short of threshold of relevance under s 55
Business records must comply with s 78 (lay opinion exception to opinion rule)
Admissibility of lay opinion evidence: s 78, Evidence Act
Opinion must be based on what person saw, heard or otherwise perceived about matter or event in question
Opinion as to nature of fall not admissible, as not based on what person saw, heard or otherwise perceived
Evidence of opinion must be necessary to obtain adequate account or understanding of perception of matter or event
Dasreef Pty Ltd v Hawchar
Expert opinon s 79 EA must be based on specialised knowledge based on the person’s training, study or experience - assumptions are not enough
Honeysett v The Queen
Expert opinion evidence - 79A
Expert anatomist’s opinion not based on specialised knowledge, but merely on subjective impressions from viewing images
Tuite v The Queen
Expert Opinion - 79A Reliability of evidence not material to admissibility under s 79(1)
Knowledge may be “specialised knowledge” even if novel or controversial
Em v Teh Queen
s 90 Discretion to exclude admissions: factors relevant to other exclusionary provisions may or may not be relevant to discretion to exclude admissions
ss 138-139: refusal of unlawfully or improperly obtained evidence
R v Shamouil
137 Exclusion of prejudicial evidence in criminal proceedings, 101A Credibility evidence
Reliability and credibility not relevant to assessment of probative value under s 137 Affirmed in IMM v The Queen
IMM v The Queen
137 Exclusion of prejudicial evidence in criminal proceedings, 101A Credibility evidence
Reliability and credibility not material to probative value under ss 97, 137 (affirming Shamouil, rejecting Dupas)
R v Sood
137 Exclusion of prejudicial evidence in criminal proceedings, 101A Credibility evidence
Reliability and credibility not relevant to probative value
Competing inferences from evidence not relevant to probative value
Affirmed in IMM v The Queen
Evans v The Queen
53 VIEWS
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
s 53 does not apply to in-court demonstrations
In-court demonstration relevant to proof of facts in issue
Qantas Airways Ltd v Gana
140 Civil proceedings: standard of proof
Briginshaw test remains proof on balance of probabilities, not ‘third standard of proof’
Degree of satisfaction required in determining that standard of proof has been discharged may vary according to seriousness of allegations of misconduct
s 140, EA equivalent to common law balance of probabilities test
Hughes v The Queen
“Significant probative value” of tendency evidence
Similarity goes to probative value, not admissibility: ss 97, 101
Azzopardi v The Queen (2001)
Jury Diretions
Cannot give directions to jury suggesting guilt as result of defendant’s failure to give evidence (as distinct from failure to give explanation)
Judge may only comment on D’s failure to give explanation where facts peculiarly within knowledge of D
Judge cannot give direction to jury regarding D’s failure to give explanation
Australia Crime Commission v Stoddar
No common law privilege against spousal incrimination
Ziems
Ran down motorcyclist, personal vs private coduct - UL 297 PM
Clyne
Alleging facts without evidence - 64 - 68, BR - 65 must have proper basis to allege facts, inc fraud, criminality
