Chapter 3 Admissibility Flashcards
When is evidence relevant?
Relevant evidence is that if accepted could rationally affect (directly or indirectly) the assessment of probability of a fact in issue: s 55 (including credibility, admissibility and a failure to adduce evidence s 55(2)). Subject to the rest o the act, relevant evidence is admissible. Evidence not relevant is inadmissible: s 56.
What if consideration of relevance depends on the Court making another finding?
The Court can make a finding of relevance if it is reasonably open to make that finding or subject to further evidence being admitted making it reasonably open to make the finding (this particularly applies to acting in furtherance of a common purpose): s 57. The Court can also draw reasonable inference as to relevance from a document or thing including as to identity and authenticity: s 58
What is the hearsay rule?
Section 59: four criteria (1) evidence of a “previous representation” (2) made by a person (3) adduced to prove the existence of a fact asserted by the representation (4) it can reasonably be supposed that the person making the representation intended to assert the existence of that fact.
Previous representation: defined in Dictionary as a representation made otherwise than in the proceedings in which evidence of the rep is sought to be adduced. Includes evidence given in earlier or interlocutors proceeds about the same subject matter: Hoy Mobile v Allphones 2008 FCA
Representation includes express and implied, oral and written, representations inferred from conduct, reps not communicated. Includes silence: R v Rose 2002 NSWCA
Persons is defined in Acts interpretation Act include natural and legal persons (not including computer and animals)
Can be admitted not for truth of rep limitation: see s 60 (but not in criminal proceedings in respect of ad admission), see s 136 allows admit limited purpose
Can you rely upon a hearsay exception if the person making the representation was not competent to give evidence at the time?
No, s 61
What is first hand hearsay?
Where the previous representation was made by a person with personal knowledge of an asserted fact. Personal knowledge if knowledge was based on something the person saw heard or otherwise perceived s 62
What are the exceptions to the first hand hearsay rule?
In civil proceedings, where the maker of the rep is not available (dead, incompetent, unlawful to give if evidence, cannot be found or cannot be compelled despite reasonable steps: Dictionary): s 63
Where maker of proceedings is available if undue expense, delay, or not reasonably practicable to call maker: s 64
Where available and giving evidence: s 64(3)
Criminal proceedings where maker not available in circs set out in s 65
Criminal proceedings if maker available and called to give evidence if rep made when occurrence of asserted fact was fresh in the memory of the person who made it: s 66
Contemporaneous rep about health, feelings, sensations, intention, knowledge or state of mind: s 66A
Many of the sections require reasonable notice in writing of intention to adduce, provisions relied upon and for 64(2) grounds as to why undue expense and delay: s 67. Reasonable notice not defined 5 minutes before heading not normally reasonable: Puchalski v the Queen NSWCA 2007. Court can make a direction an exception applies regardless (subject mod and cond as see fit): 67(4),(5). Must consider 192 and wherever failure to give notice caused prejudice: Tsang Chi Ming v Uvanna
If civil proceedings make available but claimed undue expense and delay: a party may object after receiving notice, such objection to be resolved by the court: s 68
Business records: s 69 (see other note)
Tags labels and writing on an object if for the purpose of business and for purpose of describing: s 70
Electronic communications (defined) where representations as to sender, recipient, date of communication s 71
Rep about existence, content of traditional law and customs of aboriginal and Torres Strait islander group: s 72
Evidence as to reputation concerning whether person married, whether couple living together married, age, family history, relationship. Note treated differently for prosecutors and defendants (not permitted unless contradicts existing or (for ds only) reasonable notice given: s 73
evidence of reputation regarding public or general rights eg native title. Not available for pros unless to rebut. S 74
Interlocutory proceedings where evidence of source is also given (to first and second hearsay). Interlocutory test is whether finally determine rights of parties as matter of law: s 75
When can business records be admitted into evidence?
Must be relevant: s 55, 56
Ordinarily hearsay if adduced to prove existence of fact asserted: s 59 (unless hearsay rule waived by consent s 190)
Business records hearsay exception in s 69 if:
Rep in a document
Rep by person who had person knowledge (s 62) of the asserted fact (s 59)
Document is or was part of the records kept for the “purpose of a business”
Rep made or recorded in the course of or for purposes of the business
No exception if for purposes of a proceeding or criminal investigation
Note: business records may fall within other exceptions: non hearsay purpose (60), maker availability, tags or labels (70), electronic communications s 72. Authentication can occur under assumptions in s 146-7, proof of content in s 48, prove fact showing admissible in s 170-171
What is the opinion rule?
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76 (excluding certificates etc made under an act). An opinion is generally an inference drawn from observed and communicable data: Allstate Life Insurance Co v ANZ Banking Group 1996 FCA.
What are the exceptions to the opinion rule?
- summaries of voluminous or complex documents (subsection 50(3));
- evidence relevant otherwise than as opinion evidence (section 77);
- lay opinion (section 78); (see separate card)
- Aboriginal and Torres Strait Islander traditional laws and customs (section 78A);
- expert opinion (section 79); (see separate card)
- admissions (section 81); see separate card)
- exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
- character of and expert opinion about accused persons (sections 110 and 111).
When does the lay opinion exception apply?
Section 78:
The opinion must be based on what a person saw, heard or otherwise perceived and
Must be necessary to obtain an Adequate account of the person’s perception or understanding.
Key case: Lithgow City Council v Jackson (2011) HCA . Dispute about how someone fell, ambulance officers recorded “? Falls from 1.5 metres into concrete”. HCA found no relevant as so ambiguous. Further, so obscure not opinion. Even if it was, onus on person relying on exception prove satisfied s 78 - which if didn’t. Ambulance officers did not hear see or perceive the fall. Not necessary to obtain adequate account as there to make up for incapacity to perceive the matters leading to view remember or explain the perception. Here nothing to suggest ambulance officers could not have given evidence about matters that made them write that note.
When does the expert evidence exception apply?
Section 79 sets out three requirements:
(1) person has specialised knowledge
(2) based on persons training, study or experience and
(3) wholly or substantially based on that specialised knowledge. Must be proved on BOP: s 142
Note (2) regarding specialised knowledge of child behaviour
Unclear whether reliability in field required. UsSC decision requires. NSW resisted - R v Tang per Spigelman. Honeysett not resolved. Tuite v The Queen (2015) VSCA: VSCA held no requirement for reliability for admissibility - instead matter for s 137. In that case, considered s 137 required appropriate validation of the underlying science and methodology used by expert
Honeysett v The Queen (2014) HCA: specialised knowledge is outside of that which is outside that of persons who have not by training study or experience acquired an understanding of the subject matter. Knowledge is more than subjective belief or unsupported speculation - any known body of facts or body ideas inferred from such facts or accepted as truth on good grounds. Evidence must be presented in a way that allows the court to determine opinion is substantially based on specialised knowledge from training, study or experience.
Dasreef v Hawchar (2011) HCA starting point is considering what the fact in issue the party tendering asserts the expert evidence proved. Expert evidence must explain how expertise relates to relevant facts and opinion. Failure to demonstrate opinion is based on specialised knowledge from training study or experience goes to admissibility not weight.
What if opinion evidence goes to the ultimate issue?
Not inadmissible only for that reason: s 80 - but ultimate issue means the ultimate factual issue not legal issue: Allstate Life Insurance v ANZ
What is the admissions exception to hearsay and opinion rule?
Hearsay and opinion rules do not apply to admissions (previous representations made by a person who is or becomes a party that are adverse to the persons interest in the outcome of the proceeding: dictionary): s 81(1) or previous representations made in relation to an admission at the time the admission was made or shortly before/after if it is reasonably necessary to refer to it to understand the admission: 81(2).
For hearsay, limited to first hand hearsay (persons who saw it or documents in which admissions made): s 82.
Personal knowledge or belief of subject matter not required: Hoy v Allphones (2008) FCA (check currency)
Subject to as 84-90.
Can an admission be used against a TP?
Admissions cannot be used against TP (not person who made it or person adducing) (s 83(1)) unless they consent ((2)) to it being used for all of the evidence (not part (3)).
When are admissions not admissible?
For all proceedings, not admissible unless Court satisfied not influenced by violent, oppressive, inhuman or degrading conduct or a threat of such: s 84
(Only applied where party whom evidence is adduced against raises issue). Influenced by implies only minimal level of causation: Ye Zhang (check currency)
For criminal proceedings:
Admissions to investigating officials or persons D believes could influence decisions to prosecute not admissible unless the circumstances make it unlikely that the truth of the admission was adversely affected: s 85
Where oral admission during questioning by officials, documents not admissible to prove admission unless signed or initialled by D (except recording or transcript): s 86
Not adverse inference to be drawn by silence in response to investigating official and inadmissible if no other use: s 89
Court may refuse to admire evidence if adduced by prosecution and having regard to circa unfair to admit: s 90. In Em v The Queen (2007) HCA (check currency): the questions which other ss deal with org eg reliability of statements to police not dealt with under s 90 - final safety net provision. In that case suggestions police obtained admission improperly not s 90 issue.
Section 281 of Criminal Procedure Act: admission made at time where was or could reasonably have been suspected of having committed offence in official questioning for indictable offence that cannot be dealt with summarily without consent
Evidence not admissible without tape recording, an interview explaining why tape recording not made or prosecution establishes reasonable excuse.
