CTH - Evidence Act Flashcards
CTH - Who is a compellable and component to give evidence?
CEA 12 every person is presumed component and compellable to give evidence (see also s 7-9 QEA)
CTH - A person is not component to give evidence when?
s 13 CEA does not have capacity to understand a question and answer to a question about a fact and that incapacity can not be overcome…ss(8) for the purposes of determining a question under this section court can obtain information from an expert (see also s 9A-9C QEA)
CTH - Is a defendant component and compellable in a criminal proceeding?
s 17 CEA a defendant is presumed competent but not compellable to give evidence for the prosecution (see also s 8 QEA)
CTH - Is a spouse of a defendant component and compellable to give evidence for the prosecution?
s 18 CEA a spouse (de facto, partner, or child) may object to giving evidence for the prosecution…this objection must be heard in absence of the jury…court must have regard to ss(6)-(7) when determining the objection…and the prosecution can not comment on the ruling ss (7) (Cf s 8(2) QEA)
CTH - Can the prosecution comment on the defendant’s failure to give evidence?
s 20 CEA - no
CTH - During evidence in chief can a witness use a document in an attempt to revive his or her own memory? and can the witness read it out loud?
s 32 CEA - A witness must speak from memory not must not use a document to attempt to revive memory without leave of the court…a party may apply to the court for leave…and the court will take into account (a) whether the witness will be able to recall the fact or opinion without the use of the document AND (b) and whether the document was written or made by the witness when the events were fresh in the mind of the witness or was at such a time was found to be accurate by the witness…
the court with leave may allow the witness to read aloud so much of the document as it relates to that fact or opinion
It is a rule of EIC that a witness speaks from memory rather than reliance on a document. The CL and CTH permits reviving memory in certain circumstances. What is the difference between the CL and CTH position?
CL position requires the note to be contemporaneous Cf s 32 where the document must either be made when the events were fresh in the mind of the witness or made at time found to be by the witness to be accurate - greater flexibility
CTH - The starting point is that a witness must give evidence without reference to a document, however under the CEA a certain type of witness may give evidence from reading from a document or being led through that document…discuss
s 33 CEA a police officer may be lead through a statement or read a statement during evidence in chief so long as the statement was made at the time of the event or soon after the occurrence was made and is signed and is disclosed
CTH - What is the rule in Walker v Walker and what is the CEA position on the rule?
The rule in Walker v Walker - where party A calls for a document that B has in court and B may then require A to tender it….and the contents of the document are evidence of any relevant fact recorded…notwithstanding hearsay rule…the rule does not apply to a contemporaneous note…uncertain whether applies in criminal proceedings…
s 35 CEA abolishes the requirement that a party must tender a document called for
CTH - What rule of EIC, CE, and RE in the CEA?
EIC
s 37 - leading questions are prohibited
s 38 - party not impugn witness called about general evidence or credit unless leave (see also s 17 QEA)
RE
S 39 - Re examination may only relate to matters arising out of cross…unless leave is given
CE
s 42 - leading questions are permitted
s 41 - must not ask improper questions (see also s 21 QEA)
s 43 - a witness maybe cross examined on prior inconsistent statement (see also s 18-19 QEA)
s 46 - ‘brown v dunn’ the court may give leave to a party to recall a witness about a matter raised by evidence which the witness was not cross examined on…etc (CL position harsher)
CTH - Is there an absolute right to ask leading questions in cross examination?
No at CL the court may direct a cross examiner to ask non leading questions where it appears the witness is of to much assistance to the cross examiner and s 42(3) CEA provides the court with discretion to make the cross examiner ask non leading questions
What is the original document rule?
Where a party produces a document the original rather than a copy should be produced as that is the best evidence of its content…however s 51 CEA has abolished that rule
CTH - What is relevant evidence?
s 55-56 Evidence is relevant where, if it were accepted, it could rationally effect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue. All evidence which is not relevant is not admissible (see CL Wilson v R)
CTH - What is the CEA rule against hearsay?
s 59 CEA Evidence of a previous representation made by a person if not admissible to prove the existence of a fact that it can be reasonably supposed that a person intended to assert by that fact (see CL - subramaniam v dpp)
It is a rule of EIC that a party calling a witness is not permitted to impeach it’s own witness. The CL/QEA and CEA have different tests. Discuss.
At common law and s 17 CEA a party may seek leave to impeach own witness if they are declared hostile/adverse…however the threshold is lower at CEA the witness only needs to be found to be unfavourable which even includes making a prior inconsistent statement.
CTH: How does the definition of hearsay s 59 CEA modify the common law definition of hearsay?
s 59 redefines hearsay to say that the rule will only apply where the marker ‘intended to assert’ a fact…this attempts to avoid the common law rule regarding implied assertions (see Walton v The Queen child saying “hello daddy (meaning accused); see also HCA pollit v the queen telephone exception”
CTH: What section of the CEA deals with hearsay used for a non hearsay purpose?
s 60
CTH: What section in the CEA makes admissible prelim complaint evidence in criminal proceedings? What is the difference between the CL position and the CEA?
s 66 CEA - In a criminal proceeding, a witness (who is called) an give hearsay evidence about a representation made about another person if they that person made the representation the asserted facts were fresh in the memory of the maker of the statement.
This provision is very broad…unlike the common law which narrowly permits prelim complaint evidence which goes to credit (sexually offences and DV now s 94A)…this makes admissible any representation not just complaints and not only for credit but evidence of the issues…which can include purely exculpatory statements made by the defendant to prove innocence (r v crisologo)
Are the exceptions for first hand hearsay broader or narrower under the QEA when compared to CEA?
Narrower
QEA mostly deals with first hand / direct knowledge hearsay in the context of documents…see s 92 and 93 QEA…and only s 101 QEA seems to permit the admission of oral first hand hearsay in narrow circumstances…where as s 63-66 deal with both oral and documentary hearsay which is very broad.
CTH: What are the CEA provisions deal with first hand hearsay in both criminal and civil proceedings?
s 63 civil not available
s 64 civil available
s 65 crim not available
s 66 crim available
CTH - At common law it is an exception to hearsay that a person can give evidence about another persons statement about their contemporaneous thoughts, feelings, state of mind, and health…what CEA provision admits that evidence?
s 66A
CTH - In QLD business records can be admissible under s 84 ‘books of account’, or 92(1)(b) or s 93 etc what is the business records provision in the CEA and how does it differ from QEA
s 69 CEA applies to both civil and criminal whereas QEA has them split…similar to QLD it need not be first hand hearsay provided that the information was supplied by a person who reasonably supposed to have personal knowledge
business includes government agencies
and unlike QLD there is no requirement that it is made in the ordinary course of business (i.e. reliability condition)
CEA- At common law, in an ex parte proceeding hearsay is admissible so long as the source is identififed..what is the CEA provision
s 75 CEA
Under the Commonwealth Evidence Act, when is evidence of a witness’s opinion admissible? (3 marks)
s 78 CEA - lay opinion - a witness may give a lay opinion about matters of common experience such as weather, apparent age weight or height, emotional state, or state of sobriety…if it is necessary to obtain an adequate account or understanding of their evidence
s 79 - expert opinion - if a person has specialised knowledge based of training, study, or experience can give an opinion if based wholly or substantially off that knowledge (Dasreef)
NB s 80 - ultimate issue rule abolished
What is the different between the common law and CEA requirements for expert opinion evidence to be admissible?
s 79 does not require the specialised knowledge to come from a recognised field, and there is no basis rule…otherwise unchanged from the common law…Makita v Sprowles
Under the Commonwealth Evidence Act, when is evidence of an admission from a witness not admissible? (3 marks)
s 81 hearsay rule goes not apply to admissions
s 84 admissions are not admissible if they were influenced by violence or other conduct
s 85 admissions made to person of authority to be excluded if the truth of admission was adversely affected
s 86 record of interview only admissible if defendant has signed the document
s 87 vicarious admissions - admissions by agents - (1)(a) agent (b) employee (c) common purpose (see also tripodi)
s 98 evidence of silence - not admissible as admission by conduct if made in response to questioning by a person of authority
s 90 discretion to exclude admissions adduced by the prosecution and unfair to defendant
CEA - tendency/propensity - What section sets out the rule of tendency/propensity evidence?
s 97 CEA Evidence of a persons general character, or conduct is not admissible prove that person has a tendency to act in a particular way or have a state of mind unless…(1)(a) notice is given to other party (S99 -FCR 30.31) and (1)(b) have significant probative value (Cf CL - Makin which requires higher test of substantial).
I.e. tendency evidence - because a person acted or behaved in a similar way in the past, he has a propensity to act in that way, the likelihood is that he acted in the same way on the occasion in issue.
Tendency and coincidence evidence is not admissible where there is a real possibility of concoction, collusion, and contamination (see also 132A QEA)
CEA - coincidence/similar fact rule - What section sets out the rule of tendency/propensity evidence?
s 98 - Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to the similarities in the events, it is impossible that the events occurred coincidental unless (1)(a) notice is given S99- FCR 30.32 and (1)(b) the evidence has significant probative value.
The rationale for admission is that the circumstances are so strikingly similar that it would be an afford to common sense to conclude that the happened naturally and coincidentally.
S 101 CEA provides a further restriction on tendency and coincidence evidence in criminal proceedings…what is it?
s 101 CEA tendency and coincidence evidence adduced by the prosecution is not admissible unless the probative value of the evidence substantially outweighs any prejudice it may have on the defendant…however this does not apply to the prosecution adducing evidence of this kind to explain or contradict evidence adduced the defendant.
When is evidence under s 97-98 CEA admissible?
s 97/98 tendency or coincidence evidence is only admissible where notice is given by party intending on adducing it s 99-100 (FCR 30.31-32) and the evidence has significant probative value, however in criminal proceedings s 101 provides that the evidence probative value must substantial outweigh any prejudice to the defendant.
What is and what section provides the ‘Creditability rule’? and what are some exceptions ?
Rule of examination in chief is that evidence must relate to issues and not merely accrediting the witness (i.e. referring to prior consistent statements, or accrediting own witness (memory, eye sight etc))…this is in s 102 CEA, however exceptions
s 103 during cross of witness;
s 104 cross of accused etc;
s 108 during re-examination evidence of a prior consistent statement if recent invention is alleged
What CEA section provides the rules for defendant giving good character evidence in a criminal proceeding?
s 110 CEA (1) evidence adduced by the defendant to prove that he is of good character hearsay, tendency, opinion etc rules do not apply, and they also do not apply to evidence adduce to prove the defendant is not a person of good character…however must first apply for leave (see s 15 QEA).
What sections deal with identification evidence in criminal cases in CEA?
s 114 - visual ID
s 115 - picture ID
prima facie obligation to conduct an identification parade s 114 (2)
warnings regarding ID 116
