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Evidence > Cth Evidence Act > Flashcards

Cth Evidence Act Flashcards

1
Q

Who is competent and compellable to give evidence under CEA?

A

s 12 Competence and compellability

every person is competent, every competent person is compellable (subject to act, like s 13 not competent due to lack of capacity)

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2
Q

Are defendants competent and compellalable to give evidence in a criminal proceeding under CEA?

A

s 17
deft not competent to give evidence as witness for prosecution. Associated deft only compellabe if being separately tried

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3
Q

Can spouses and other like related person be compellable to give evidence in criminal proceedings under CEA?

A

s 18
Spouse, de facto, parent or child can object to being required to give evidence for prosecution. Upon rejection court must not require person to give evidence if there is a liklihood of harm, and harm outweighs desire of giving evidence.

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4
Q

Can it be adverse to accused to not give evidence under CEA?

A

s 20 - criminal proceeding for indictable offence - Judge or another party can comment on failure of deft to give evidence. Only another defendant in proceeding can suggest deft failed to give evidence because they were guilty.

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5
Q

Can a witness revive their memory in court under the CEA?

A

s 32
Witness can only use document in court to revive memory if the court gives leave.

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6
Q

How is evidence given by police officers under the CEA

A

s 33
producing their statement to the court is their evidence in chief

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7
Q

Is rule of Walker v Walker in the CEA?

A

s 35
Rule of walker v walker abolished.

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8
Q

How are questions asked in examination in chief under CEA?

A

s 37
Leading questions must not be asked in examination in chief/re-examination, unless exceptions (leave of court, introductory matter, no objection, matter not in dispute, expert witness question about hypothetical facts)

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9
Q

When can a party cross examine their own witness under CEA?

A

s 38 Unfavorable witness
with leave of court party can cross examine witness about their evidence;
unfavorable to the part
witness not making genuine attempt to recall.

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10
Q

What are the limits of re-examination under the CEA?

A

s 39
Only matters arising from cross or with leave of court.

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11
Q

What questions are not allowed to be asked under the CEA?

A

s 41 Improper questions
disallowable questions; misdealing/confusing/unduly annoying, intimidating, offensive, humiliating/stereotype basis. Court can take in characteristics of witness to assess this.

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12
Q

When can leading questions be asked?

A

s 42
Can be asked in cross-examination unless court disallows it on basis that witness has been unfavourable/inconsistent interes/sympathetic to party that called it OR
Facts would be better ascertained if leading questions not asked

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13
Q

How can witness be cross-examined on prior inconsistent statements?

A

s 43
Can be crossed whether particulars/or statement put before the witness. If witness denies, must be put before witness before adducing evidence of statement from someone else

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14
Q

Can a person be cross-examined about previous representations by another person?

A

s 44
Must not cross on previous representation by another unless the representation ahs been admitted or will be admitted. Otherwise witness can still be questioned on it if not aired to the court.

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15
Q

How is Browne v Dunn reflected in CEA?

A

The consequences of the requirement of Brown v Dunn is alleviated under s 46, leave to recall witness, that allows witness to be recalled if evidence contracting to theirs adduced?

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16
Q

Does the original document rule apply under CEA?

A

s 51 original document rule abolished.

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17
Q

What is relevance under CEA?

A

s 55
evidence, if accepted, reaitonally affect (directly or indirectly) probability of existence of fact

Not irrelevant if it only relates to;
credibility of witness;
admissibility of other evidence
failure to adduce evidence

s 56 if relevant, is admissible, unless excluded by some other rule.

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18
Q

What is the rule against hearsay under CEA?

A

s 59
Previous representation by a person is not admissible, if person intended to assert by the representation “asserted fact”

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19
Q

What if a previous representation under the CEA is led but not as hearsay?

A

s 60 CEA
Hearsay does not exclude evidence of previous representation if relevant, other than proof of an asserted fact regardless of whether representor had personal knowledge of the fact. Does not apply to crim proceeding for admission

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20
Q

Can hearsay evidence be adduced in a civil proceeding if the representor is available?

A

s 64 CEA - Exception. Civil. Maker available.
Limited to first hand hearsay s 62)
If maker available, but calling would be undesirable (delay, not practicable) can lead the hearsay without calling.
OR
If maker called, can lead the evidence.

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21
Q

What is first hand hearsay and what is its purpose under CEA?

A

s 62 CEA
First hand hearsay is where the representor had person knowledge (saw/heard/perceived) the thing the assert. Firsthand hearsay if for the purpose of admitting hearsay evidence under Ch 3 Div 2:
s 63 CEA - Civil proceedings - maker unavailable.
s 64 CEA Civil proceeding - maker available.
s 65 CEA Criminal proceedings - maker not available
s 66 CEA - Criminal proceedings - maker available
s 66A CEA - Exception - contemporaneous statements about person’s health
s 67 Notice to be given about adducing this evidence

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22
Q

Can hearsay evidence be adduced in a civil proceeding if the representor is unavailable?

A

s 63 CEA Exception. Civil. Unavailable.
Hearsay rule does not apply (firsthand hearsay s 62 CEA) to person not available.
Available
“unavailability of persons” defined in dictionary - Other expressions s 4; (dead, incapacitated, not competent, illusive) and can include witness that does not remember events

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23
Q

What does ‘not available’ mean under the CEA?

A

Dictionary, other expressions, 4. CEA.
“unavailability of persons” dead, incapacitated, not competent, illusive and can even include witness that does not remember events

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24
Q

Can hearsay evidence be adduced in a criminal proceeding if the maker of it is not available?

A

s 65 CEA. Exception. Criminal. Not available.
Limited to firsthand hearsay (s 62 CEA) hearsay rule does not apply, if representation, inter alia;
MADE SHORTLY AFTER THE ASSERTED FACT OCCURED, UNLIKELY IT IS FABRIACTION (RES GESTAE EXCEPTION) or,
in circs make it highly probable it is reliable, or,
Against interests of person who made it and reliable.

For defendant, hearsay rule does not apply.

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25
Q

Can hearsay evidence be adduced under CEA in a criminal proceeding if the maker is available?

A

s 66 CEA. Exception. Criminal. Available.
Limited to firsthand hearsay (s 62).
Hearsay rule does not apply if that person is called to their own representation, or representation of another if when made was fresh in the memory of the representor.

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26
Q

Can hearsay evidence be adduced under CEA about representation of person’s health or feelings or state of mind?

A

s 66A CEA. Exception. Contemp Statements.
LImited to firsthand hearsay (s 62 CEA)
Hearsay does not apply to statements about a person’s health, feelings, sensations, intention, knowledge, or state of mind.

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27
Q

What is incumbent on a party intending to adduce hearsay evidence, under the CEA?

A

s 67 Notice to be gvien,
in writing, to each party etc.

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28
Q

What can a party do if they are aggrieved about another party intending on adducing hearsay evidence in a civil proceeding t avoid calling the maker due to expense or it not being practicable, under CEA?

A

s 68 CEA. Objection. Civil. If maker available.
Party can object.

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29
Q

What are other exceptions (not firsthand hearsay exceptions) to hearsay rule under the CEA?

A

s 69 CEA Exception. Business Records
s 70 CEA. Exception. Contents of tags, labels, handwriting
s 71 CEA. Exception. Electronic Records.
s 72 CEA. ATSI laws/customs
s 73 CEA. reputation as to relationships and age.
s 75 CEA. Interlocutory proceedings

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30
Q

What is the rule about opinion under the CEA (general rule)?

A

s 76 Opinion rule
not admissible. Except certificates, and exception provisions.

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31
Q

What are the provisions exceptions to opinion rule under CEA?

A

s 77 Exception (Opinion) evidence relevant other than as opinion
s 78 Exception (opinion) lay opnion
s 78A Exception (opinion) ATSI stuff
s 79 Exception (opinion) Specialised knowledge EXPERT OPINION

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32
Q

What is required for expert opinion to be given under CEA? What case might govern a requirement?

A

s 79
Person has specialised knowledge from training, study, or experience, opinion rule does not apply to opinion wholly or substantially based on that knowledge.

Dasreef case - does not require basis rule (assumed facts proved on admissible evidence before, during, after opinion adduced) however little weight given if party fails to prove truth of facts on which it is based. Expert opinion completely unrelated to proved facts may be irrelevant (s 55 CEA) and thus not admissible (s 56 CEA).

s 79 Does not appear to require the common law principles expounded in Makita v Sprowles.

silica dust.

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33
Q

Can an expert opine about the ultimate issue in trial, under the CEA?

A

s 80 CEA
Ultimate issue and common knowledge rules abolished

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34
Q

How do the CEA hearsay rule and opinion rule affect the admissibility of admissions?

A

s 81 CEA
hearsay and opinion rules do not apply to evidence of admission. Do not apply with representations accompanying and admission (for its context)

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35
Q

What are the exclusionary rules of admission under the CEA?

A

s 82 CEA Admissions not firsthand.
s 83 CEA Admissions against third party.
s 84 CEA Admissions affected by violence.
s 85 CEA Unreliable Admissions of accused.
s 86 CEA Records of oral questioning.

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36
Q

What is an admission under the CEA?

A

Part 1 Definitions CEA
Admission is a previous representation b a person who is/becomes party to proceeding (including criminal) and adverse to their interest in the outcome of the proceeding

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37
Q

When does the hearsay rule exclude admissions, under the CEA?

A

s 81 CEA
Hearsay rule will apply to admission unless the evidence comes from a person who perceived the admission.

38
Q

Is admissions made against a third party (party to a proceeding but did not make the admission) admissible under CEA?

A

s 83 CEA Exclusion. Admissions against third party.
Hearsay exception does not allow this to be adduced.

39
Q

What is the consequence of an admission influenced by violence under the CEA?

A

s 84 Exclusion. Admissions influenced by violence.
If party raises issue, court to be satisfied admission not influenced by violence or other conduct or a threat of that kind.

39
Q

When are admissions by defendant in criminal proceeding to be excluded on basis of reliability under CEA?

A

s 85 CEA. Crim proceedings. reliability of admissions
Admission not admissible unless circumstances make it unlikely truth of admission was adversely affected. Court to consider; characteristics of person/age/personality/education/mental, intellectual, physical disability/ nature of questions and tone.

40
Q

When are records of oral questioning to be excluded under CEA?

A

s 86 Exlclusion of records of oral questioning .
For crim proceedings, response to questions by investigating official defendant recorded in document (not audio/visual recording) only admissible if deft signs/acknowledges the document.

41
Q

How are vicarious admissions admissible under the CEA?

A

s 87 CEA Admissions made with authority.
To be admitted if person had authority, was employee and admission within scope of employment, made in furtherance of common purpose (lawful or not (tripodi)).

42
Q

Can evidence of silence be used against a defendant in a criminal proceeding, under the CEA?

A

s 89 CEA Evidence of Silence
Crim proceeding, inference unfavorable (consciousness of guilt/credibility) cannot be drawn from party failing or refusing to answer questions of investigating official. Can be adduced for another purpose (refusal is a fact in issue in proceeding)

43
Q

What are the discretions to exclude evidence under the CEA?

A

s 90 CEA Discretion to exclude admissions
In crim proceeding, court can exclude evidence by prosecution of admission if when made, would make it unfair to use as evidence.

s 139 CEA Cautioning by investigating offficials
If not observed, this renders the admission improperly obtained per s 138 of CEA and enlivens a discretion to exclude the evidence

44
Q

Can evidence of judgements and previous convictions be adduced under the CEA?

A

s 91 CEA Evidence of judgements and convictions.
Not admissible to prove these.

45
Q

What are the general exceptions to s 91 of the CEA?

A

s 92 Exceptions
General mechanical exceptions
s 93 Savings
Exception of being addued in criminal proceeding, or in rem, or res judicata for estoppel.

46
Q

What is the rule regarding tendency under the CEA?

A

s 97 CEA Tendency rule
Evidence of character/reputation/conduct/tendency to act in certain way or have state of mind not admissible EXCEPT for if notice given and court finds that either itself or with regard to other evidence, will have SIGNIFICANT PROBATIVE VALUE.

This rule does not apply to credibility or such matters if those matters are themselves a fact in issue (s 94 CEA Application) if so tendered cannot be used for tendency.

For crim proceedings, further qualified by s 101.

47
Q

What is the rule regarding coincidence under the CEA?

A

s 98 Coincidence rule
2 or more events not admissible to prove person did act or had state of mind with regard to similarities and is improbable were a coincidence, unless party gives notice and court things evidence (by itself or having regard to other evidence) will have significant.

For crim proceedings, further qualified by s 101.

48
Q

What further qualifies the rules under ss 97, 98 CEA?

A

s 101 CEA Further restrictions. Evidence by prosecution.
For crim proceedings, for ss 97, 98. Tendency/coincidence evidence cannot be adduced against deft, unless probative value substantially outweighs prejudicial effect to defendant.
(this does not apply to contradicting such evidence adduced by the defendant).

49
Q

What is credibility evidence under the CEA?

A

s 101A Credibility evidence
Evidence because it affects the assessment of credibility of some witness.

50
Q

What is the credibility rule under the CEA?

A

s 102 Credibility rule
Credibility evidence is not admissible

51
Q

What are the exceptions to credibility evidence under CEA?

A

ss 102, 104 CEA Evidence adduced in cross.
s 106 CEA Evidence to rebut denials.
s 108 CEA Evidence to re-establish credibility
s 108C CEA Persons with specialised knowledge.
s 110 CEA Character of accused.

52
Q

What is the main exception to s 102 of the CEA?

A

s 103 CEA Exception. Credibility. Cross.
Credibility rule (s 103) does not apply in cross examination if evidence could substantially affect the credibility of witness).
Qualified by s 104 for crim proceedings (cannot cross deft about credibility unless court gives leave subject to exceptions).

53
Q

How is cross examination of a defendant as to credit qualified under CEA?

A

s 103 CEA can cross as to deft, however.
s 104 CEA. Need leave to cross deft as to credit and leave only granted if deft has impugned pros witness HOWEVER leave not required to cross about whether deft is biased/motive to lie, unable to recall matters to which their evidence related, prior inconsistent statement. Leave will only be granted if deft had impugned credibility of pros witness

54
Q

When can evidence be put to a witness when they deny a matter about credibility?

A

s 106 Exception. Rebutting denials.
Witness denies credibility question in cross, court can leave to adduce the evidence. Leave not required for bias/motive to lie/conviction of previous offence/prior inconsistent statement.

55
Q

Does credibility rule apply to re-examination and Is a prior consistent statement admissible under the CEA?

A

s 108 Credibility. Exception. re-establishing credibility
Credibility rule does not apply to rexam of witness. Does not apply to prior consistent statement if prior inconsistent statement has been admitted and court gives leave to adduce the prior inconsistent statement.

56
Q

How does the credibility rule affect persons who are not witnesses under the CEA?

A

s 108A
If evidence of previous representation of non-witness admitted, credibility evidence about the maker not admissible unless it could substantially affect assessment of credibility.

57
Q

How does the credibility rule affect an accused that is not a witness to the proceeding, but who made a previous representation, under the CEA?

A

s 108B (in conjunction with s 108A)
Crim proceeding; if deft’ previous representation admitted. Court can leave for pros to adduce credibility evidence if deft impugns pros witness OR leave not required if on matter of bias/motive to be untruthful/unable to recall matters in representation/prior inconsistent statement

58
Q

Can expert’s give evidence about matters of credibility under the CEA?

A

s 108C Exception. Credibility. Persons with specialised knowledge.
Expert can give evidence on credibility of another witness (provided they satisfy training/experience and the form opinion on that, and could substantially affect credibility of witness) if court gives leave.

59
Q

What are the rules on admitting character evidence under the CEA?

A

s 110 Evidence about character of accused persons
For crim proceedings; hearsay/opinion/tedency/credibility rules do not apply about evidence of good character. If admitted, those rules do not apply to pros admitting evidence to show deft not of good character

60
Q

Can a defendant in a criminal proceeding be cross examined about their character, under the CEA?

A

s 112 Leave required to cross-examine about character.
Court must give leave for these matters.

61
Q

Can a defendant adduce evidence about character of co-accused, under the CEA?

A

s 111 Evidence about character of accused
Hearsay/tendency rule do not apply about a defendant’s character, if adduced by another defendant, from an expert. If admitted then those rules do not apply to rebuttal evidence.

62
Q

What is identification evidence under the CEA?

A

Dictionary
Assertion that deft was OR resemble visually, aurally, otherwise) a person near place where offence was committed

63
Q

What is visual identification evidence under the CEA and what is the general rule about it?

A

s 114 Exclusion of visual identification evidence
Visual ID evidence ID based wholly on what a person saw. (this must be docking)

Not admissible by pros unless ID parade done/not reasonable to ID parade/deft refused to participate in such parade AND Identifying person not influenced

Court to take into account various matters if deciding whether not reasonable to have id parade (including relationship between witness and defendant)

64
Q

What is picture identification evidence under the CEA and what is the general rule?

A

s 115 Exclusion of evidence ID by pictures
Picture ID evidence means witness ID-ing deft in photos of deft kept by police.
Not admissible if the pictures suggest they are person’s in police custody. If deft in custody, then new photo has to be taken (unless deft appearance changed significantly since time of offence)

65
Q

Can you use picture identity evidence in lieu of a identity parade under the CEA?

A

s 115 Exclusion of identification by pictures
s 115(5) need to offer deft identity parade first, if deft in police custody, unless deft refuses to participate, or appearance has changed significantly since offence, would not be reasonable to do parade.

66
Q

What directions under CEA must judge give to jury regarding picture ID evidence and ID evidence generally?

A

s 115(7) CEA - Picture ID evidence
If deft requests, inform jury that photo was taken after deft went into custody OTHERWISE inform jury must not assume deft has crim record/previously been charged

s 116 CEA Directions to Jury
there is special need for caution before accepting ID evidence, for reasons generally and of the case

67
Q

Do you have the satisfy the requirements of picture ID evidence to adduce it if the deft adduces picture ID evidence?

A

s 115(8) this seciton does not render inadmissible pros picture ID evidence that contradicts or qualifies ID evidence adduced by deft
- i.e need to have parade first, subject to exceptions.

68
Q

Can evidence that constitutes legal advice be adduced under the CEA?

A

s 118 CEA If client objects on basis that evidence would result in confidential communication made between client and a lawyer/document - that was for DOMINANT PURPOSE of providing legal advice to the client

s 119 CEA if client objects, again communication/confidential document for DOMINANT PURPOSE of providing legal professional services for Aust/overseas/anticipated litigation

69
Q

Is legal professional privilege limited to communications betwen lawyers and clients or is it extended under CEA?

A

s 120 Unrepresented parties (privilege)
On objection, confidential communication between the party and not lawyer, for dominant purpose of preparing or conducting the proceeding, not admissible.

70
Q

What ends the legal privilege under the CEA?

A

s 122 Lost of client legal privilege
- consent
- party acting inconsistent with privilege (like knowingly/voluntarily disclosing it
- not acted inconsistently if during course of making confidential communication/duress or deception/compulsion of law

71
Q

To what extent does the CEA limit via privilege evidence given by defendant in a criminal proceeding?

A

s 123 Loss of privilege - defendants
Deft can adduce evidence even if privileged, unless it was between associated deft and their lawyer

72
Q

Can a party use privileged (legal) communication between co-party (jointly retained lawyer) in a civil proceeding?

A

s 124 Loss of client legal privilege: joint parties
party can adduce evidence of communication/document between one of them and the lawyer, connected to the proceeding

73
Q

What is the status of a confession made religiously, under the CEA:

A

s 127 Religious confessions
Religious confession is privileged unless made for a criminal purpose

74
Q

Can witness (not a defendant) refuse to answer questions on basis of privilege against self incrimination?

A

s 128 Privilege in respect of self-incrimination
If a witness objects, on ground may incriminate for offence, court must decide objection; if reasonable court not require evidence given but witness can willingly give it. If not reasonable court can require the witness give it if interests of justice.

75
Q

What protection is a witness (not a defendant) conferred, if they willingly give evidence after the court identifies it is privileged OR the court required to give them evidence because it wasn’t privileged against self-incrim OR the court required them to give the evidence and turns out the court was wrong about it being self-incrim?

A

s 128 CEA privilege. self incrimination.
Court must give them a certificate about the privilege against self-incrim matters testified about, which then bars use of that evidence in an Australian Court.

76
Q

How does the privileges against self incrimination apply to a defendant under the CEA?

A

s 128(9)m(10) CEA Privilege against self incrim
If a defendant gives evidence tending to self incrim for non-related matters, must be given protection certificate (though it cannot bar use of this evidence in retrial). Privilege against self-incrim will NOT apply to the offence/matters contested.

77
Q

Can evidence of settlement negotiations be adduced under the CEA?

A

s 131 Exclusion of settlement negotiations
Cannot adduce evidence of settlements negotiations UNLESS consent/implied consent/enforce the agreement/assessing liability of costs. Does not include attempt to negotiate settlement for a criminal proceeding.

78
Q

What is the general discretion to exclude evidence under the CEA?

A

s 135 General discretion to exclude evidence
Court may refuse evidence, if probative value is substantially outweighed by danger it might be unfairly prejudicial to a part, misleading/confusing/cause undue waste of time
s 136 Court can also limit this evidence

79
Q

Does court have discretion to exclude prejudicial evidence in a criminal proceeding under the CEA?

A

s 137 CEA Exclusion in crim proceedings.
Mandatory; court MUST refuse to admit evidence if probative value is outweighed by the danger of unfair prejudice to the defendant

80
Q

What is the go with improperly or illegally obtained evidence under the CEA?

A

s 138 Discretion to exclude improperly or illegally obtained evidence.
Evidence improperly or illegally obtained must not be admitted unless desirability of admitting evidence outweighs desirability. This includes questioning of person where questioner impairs defendant’s ability to answer or made a false statement in questioning likely to cause admission. Court to take into account matters under sub (3)

81
Q

What is the status of evidence, that is a statement taking during questioning without cautioning by officials, under the CEA?

A

s 139 Cautioning of persons
Statement during arrest (includes not arrest but also in company for questioning) questioning by investigating official without cautioning, is improperly obtained for the purpose of s 138 (discretion; improperly/illegally obtained evidence)

82
Q

What is the standard of proof for civil proceedings under the CEA?

A

s 140 Civil proceedings; standard of proof
Proved on balance of probabilities
sub (2) matters to be taken into account (like brigginshaw)

83
Q

What is the standard of proof for criminal proceedings under the CEA?

A

s 141 Criminal proceedings; standard of proof
BRD, if deft has to prove something must be on balance of proof

84
Q

What is the standard of proof for admissibility of evidence or discretion exercise?

A

s 142 CEA Admissibility of evidence: standard of proof
Balance of probabilities

85
Q

Is judicial notice provided for under the CEA?

A

s 144 Matters of common knowledge
Proof note required for matters of common knowledge
s 190 CEA parties can also waive rules of evidence by consent

86
Q

How can evidence produced by a device of process be admitted

A

s 146 CEA Evidence produced by processes machines or other devices
s 147 CEA documents produced by processes machines and other devise

87
Q

Does corroborating evidence required to be adduced under CEA or QEA for crim offences?

A

s 164 Corroboration requirements abolished
s 632 Corroborating evidence

88
Q

How is a jury to be told about unreliable evidence under the CEA?

A

S 165 CEA Unreliable Evidence
If requested, judge needs to give warnings about the evidence being unreliable for heardsay, ID, reliaibliy affected by age/health etc/potential criminal/prison informer

89
Q

Is a judge to give warnings in relation to children’s evidence in a proceeding?

A

s 165A Warnings in relation to children’s evidence
Must not warn jury gernally about the reliability of childrens evidence but can inform the jury that the evidence of a particular child may be unreliable for particular reasons.

90
Q

What is a jury direction s 165B delay in prosecution?

A

s 165B delay in prosecution
On application by deft court can give direction about forensic disadvantage to deft from delay

Evidence (4 decks)

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