Chapter 3 - Admissibility - Details

Question 1

Name the purpose of part 3.1 and some basic principles

Answer 1

Relevance ss55-58
Fact in issue = something referable to an element of the offence or a defence once raised (crim) something referable to a matter contended in pleadings (civil)

“Capable of rationally affecting”
Lithgow City Council v Jackson (2011) 244 CLR 352, [25]-[26], the relevant matter or event was the circumstances in which the plaintiff fell (down a slope or a vertical wall), but ambulance officers’ notes said “fall from 1.5 metres” consistent with both a vertical fall and a slope–completely ambiguous. Held – not relevant.

“A fact in issue”
Smith v The Queen [2001] HCA 50 at [7]
In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.

Question 2

What rule is section 59 and what are three factors for its application

Answer 2

HS.

1. Out-of-court representation;
2. Made by a person;
3. adduced in support of a fact the person intended to assert

Example
Subramanium -
1. Representation - we’ll kill you if you don’t carry the ammunition ✓

2. Made by a person - terrorists ✓
3. (a) fact intended to be asserted - we’ll kill you if you don’t…
   (b) basis adduced: evidence that Sub under duress NOT that he would in fact be killed X - not hearsay

Question 3

KAMLEH v THE QUEEN [2005] HCA 2

Answer 3

Kamleh v The Queen Criminal law - Evidence - Hearsay - Appellant charged with murder - Alleged accomplice not called as witness - Admissibility of evidence of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements - Whether evidence of out-of-court statements adduced to prove intention is admissible - Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 discussed. Evidence - Hearsay - Criminal law - Admissibility of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements - Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 discussed.

Question 4

What is the relationship between 3.2 and Jones v Dunkel