Cases Generally

Question 1

Kneebone

Answer 1

Victim asserted mother witnessed assault. Mother denied seeing anything. Crown did not call mother.

Crown said she was unreliable and was not called.

Held:
Crown needs to point to identifiable factors that show unreliability
Needs to take appropriate steps which includes witness
Crowns perogative to call or not to call witnesses, if fail to call material witness may have to justify. See also r 83 (duty to call), 87 (duty to disclose), 89 (call all witnesses)
(Insert from slides)

Question 2

SH v R

Answer 2

Sexual assault of child under 10. Complainant main witness and gave unsworn evidence. Judge did not refer to statement that witness should feel no pressure to agree.
Strict compliance with s 13(5)(c) is required - court required to impart that information

Question 3

Browne v Dunn

Answer 3

Party obliged to give appropriate notice to the other party and any witnesses of any imputation that the party intends to make about conduct relevant to case, or party/witness credit. Typically notice given through cross examination.

Consequence of breach: s 46 recall, SS 135-7, Court may obtain from making finding or allow a party to reopen case to rebut or collaborate

Question 4

NAB v Rusu; ACCC v Air NZ

Answer 4

S 58 can be used to draw inferences about authenticity. Cf ACCC v Air NZ. Note s 183 and other assumption provisions re documents

Question 5

Smith v R

Answer 5

Smith convicted of robbing bank. Police officers gave evidence knew him and he was person in dock. Held: not relevant - in no better position than the jury

Question 6

Shamouil (NSW); Sood; Dupas; IMM

Answer 6

Cases about assessment of probative value: s 137. NsW line of cases - do not take into account credibility and reliability (or the weight the jury might attach) for purposes of probative value.

Victoria contrary line of authority.

IMM resolves

State:
There has been some debate about whether “probative value” includes credbility and reliability: Sood; Shamouil; Dupas. In IMM HCA resolved - take evidence at its highest - assume credible and reliable. But surrounding circumstances may suggest not very high at all.
If fanciful not relevant: IMM

Sood issue of competing explanations - need to add

Question 7

IMM

Answer 7

Take the use the evidence might be used as its highest for ss 79 and 137. Does not distort a finding if the real probative value of the fact in issue. Circumstances may suggest that the highest level is not very high at all. Credbility (truthfulness), reliability (internal factors - eg eyesight)

In this case without more difficult to see how complainants evidence of conduct of a sexual kind from an occasion other than the charges acts can be regarded as having the required degree f probative value

Question 8

Lee

Answer 8

Overruled by s 60(2) in current form.

Lee is second hand hearsay

Question 9

Graham

Answer 9

Overrules by s 66(2A). State: flexible, no specific time limit contrast s Graham (recent or immediate)

Question 10

Adam v The Queen

Answer 10

Overruled by s 101A. Prior inconsistent statements made to the police. Prosecution wanted to cross-examine. Prior inconsistent statements admitted for truth of what was said because relevant to credibility s 102 and s 60 hearsay exception. (S 101A must be relevant and admissible for other purpose)

Question 11

Papakosmas

Answer 11

Victim told colleagues after sexual assault that assaulted. Immediate and told three people. Evidence of a recent sexual assault complaint admitted as evidence of facts asserted in complaint where factors in s 66(2) satisfied. Non hearsay purpose - relevant as a prior consistent statement.

Relevance only requires a logical connection between evidence and a fact in issue. Evidence of what victim said shortly after sex relevant to consent.

Section 136 has work to do if danger of unfair prejudice under s 60 but should not be used generally to subvert the legislature

Question 12

Esso v Commissioner of Taxation

Answer 12

Common law test for LPP is same as Act - dominant purpose legal advice or use in actual or anticipated litigation (move away from old sole purpose test).

S 131A applies bulk of important privileges to pre trial disclosure. Otherwise, common law. FCA does not.

Question 13

Mann v Carnell

Answer 13

CL test for waiver. Inconsistency between conduct of the client and the purpose of the privilege in protecting confidentiality of legal advice

Remember s 131A for NSW only

Question 14

Stanoeski

Answer 14

Always cite for s 192. (This case in particular was about s 122 - character evidence).

Question 15

Ellis

Answer 15

S 101 tendency in criminal

Consistent method of stealing from petrol stations. Key takeaway: affirms old CL test of no rational explanation in Pfenning not applied

Rejected view s 101 required very considerable stringency

Question 16

Jones v The Queen

Answer 16

Possibility if concoction does not made inadmissivle - CL overruled

Question 17

Jones v Dunkel

Answer 17

In civil cases, finder of fact may draw inference from failure to give evidence that evidence, if drawn, would not have asssisted that party’s case
Three conditions- more likely that witness be called by one party than another, whether evidence would elucidate, whether absence unexplained.

Does not apply to criminal D: Dyers

Question 18

Dyers v The Queen

Answer 18

No inference for criminal D beyond Weisssensteiner (no application to other Ds)

For Weissensteiner inference, judge may comment but not direct

Confirms W applies with s 20

Question 19

Weissensteiner

Answer 19

Ties in with s 20.

Where:
1. Prosecution invites jury to draw particularly damning inference from proven facts CHECK
2. May be additional facts that would explain or contradict.
3 those facts would be peculiarly within the knowledge of the D.
Judge is entitled to comment but not direct failure of the defendant entitles the jury to more readily draw the inference the prosecution is seeking (not a direction: Dyers)

See cards on Dyers and Azzopardi

Question 20

Dasreef v Hawchar

Answer 20

S 79.

Starting point is considering the fact in issue the rendering party asserts expect opinion goes to.

Evidence must explain how expertise relates to relevant fact in opinion and disclose facts and assumptions based on. May need to disclose reasoning process. Failure to demonstrate opinion based on specialised knowledge goes to admissibility not weight.

Debate about whether facts and assumptions must be proved for opinion to be admissible - see competing judgments

Question 21

Lithgow City Council v Jackson

Answer 21

Section 78 lay evidence exception

Ambulance notes case about fall. HCA held so ambiguous so not relevant. So obscure not option. Even if didn’t, did not hear see or perceive the fall. Also not necessary to obtain an adequate account - the could have set out basis of what was written.

Principles:

1. Opinion not defined - inference from observed data
2. If obscure or ambiguous not opinion and may be irrelevant
3. Opinion must be about the relevant matter or event, which W must have perceived
4. Applies where primary facts are too evanescent to remember or too complicated to be separately narrated
5. Necessary means only way to overcome inability to perceive recall or describe

Question 22

Honeysett

Answer 22

Anatomist who looked at video and identified accused and concluded same person. Held just based on subjective impression from physical observation not based on expertise.

Recall if cannot assist jury may be irrelevant.

Principles:
Meaning of specialised knowledge
1. Specialised knowledge outside that of persons who have not by training, study or experience acquired understanding of subject matter
2. More than subjective belief or unsupported speculation - it is any known body of facts or body ideas inferred from such facts or accepted as truth on good grounds.

Unclear whether reliability in field requires - US says yes and honeysett cites but does not consider.

Wholly or substantially based
Cannot be speculation or subjective option unrelated to expertise

Question 23

Tuite

Answer 23

No reliability test in s 79 as long as can establish training study and experience. Matter for ss 135-137 - but IMM says it is not (lack of validation of method may be a relevant ‘circumstance’ suggesting probative value not that high at all)

Specialised knowledge may be so even if novel or inferences not tested or accepted by others

Question 24

Em v The Queen

Answer 24

About secret recordings. Person under impression can’t be used against him unless taped. S 90 discretion to exclude criminal admissions

Gleeson and Heydon: unreliability relevant but not exclusive consideration. Not unfair here.
Gummow v Hayne S 90 final safety net provision - won’t apply where subject matter covered by other provision

Question 25

Evans

Answer 25

Those sections dealing with demonstrations do not apply to in Court demonstrations (eg 53-54)
Court split 3 held provided no information that was relevant - revealed nothing about wearer and nothing not already apparent to jury
3 held it did
Everyone agreed wearing overalls and walking relevant (funny walk) and saying line in video (to measure voice) relevant.

Question 26

Stoddart

Answer 26

No spousal privilege at common law

Question 27

Qantas v Gama

Answer 27

Briginshaw does not create a third standard for civil cases about criminal acts/serous acts. but the degree of satisfaction necessary will vary according to the nature of what is sought to be proved l.

Question 28

Hughes v The Queen

Answer 28

Crown wanted to say upon uncharged Act to show sexual interest in minors and developing relationships for access. Offences themselves different.

Held:
Should make more likely to a significant extent the facts that make up elements of offence. Two interested questions: extent to which evidence supports the tendency and extent to which supports facts makes up offence charged (both strong extent)
Significance reliant on nature of proceeding and relevant facts in issue and must be evaluated in importance evidence will have in context of fact finding
No requirement of underlying unity/sufficient similarity etc
No requirement tender to perform particular act - can be tendency to act in particular way.

Question 29

GW

Answer 29

Don’t direct unreliable because unsworn - particularly children’s evidence