Evidence

Question 1

When is a witness compellable to give evidence?

Answer 1

A party may question any witness (s27) and every person is presumed competent to give evidence which making them compellable (s12).

But a person may not be competent to give evidence about a fact if they do not have capacity to understand a question or cannot give an answer that can be understood: s13 (in which case they may be able to give unsworn evidence).

Question 2

What makes evidence prima facie admissible?

Answer 2

If it is relevant: s56 (relevance being that which can rationally affect the probability of the existence of a fact in issue: s55)

Question 3

When can I get leave to cross-examine my own witness?

Answer 3

With s192 leave a party may question using cross-examination about (s38):
- evidence unfavourable
- no genuine attempt to give evidence reasonably supposed to have knowledge
- prior inconsistent statement
- matters related to credibility

Question 4

What happens if a dodgy question is asked in cross-examination?

Answer 4

If question is improper (misleading/confusing, annoying, harassing, intimidating, offensive, oppressive, humiliating, repetitive, belittling, insulting, inappropriate, or stereotypical), court may disallow question or inform witness it doesn’t need to be answered: s41

Question 5

What happens if a witness is cross-examined about their own prior inconsistent statement and they deny the inconsistency?

Answer 5

The cross-examiner must inform them of enough circumstances to identify the statement and draw their attention to it: s43 (and the Court may examine/direct/admit that document if it amounts to s103 credibility evidence)

Question 6

What happens if a witness is cross-examined about a third party prior inconsistent statement recorded in a document that has been (or will be) admitted?

Answer 6

The cross-examiner must (not in front of the jury) produce the document to the witness and then ask if they stand by their evidence: s44 (and the Court may examine/direct/admit) that document if it amounts to s103 credibility evidence)

Question 7

Can evidence admitted for some other reason be used for a hearsay purpose?

Answer 7

Yes, other than for an admission in a criminal proceeding: s60

Question 8

Is tendency and/or coincidence evidence admissible?

Answer 8

Per s97 (tendency) or s98 (coincidence) not unless s99 notice is given and the evidence is of significant probative value (could rationally affect assessment of probability of a fact), and if for use against a criminal defendant then per s101 the probative value must substantially outweigh any prejudicial affect (appeals to fact finders sympathies or arouses horror or instinct to punish) - but trial judge could endeavour to moderate prejudice by use of a relevant jury direction

Question 9

What is credibility evidence?

Answer 9

Per s101A evidence where the only admissible reason would be an assessment of credibility (therefore evidence admissible for some other reason is not credibility evidence)

Question 10

Is credibility evidence admissible?

Answer 10

No, except:
- Per s43 witness may be cross-examined about prior inconsistent statement
- Per s103 evidence in cross which would substantially affect credibility, having regard to whether evidence tends to prove a knowing of false representation under an obligation to tell the truth, and the period of time
- For criminal defendant giving evidence, per s104:
– with leave (not to be granted unless evidence adduced by defendant as to credibility of prosecution witness)
– without leave if cross-examination about bias or reason to be untruthful, or witness was unable to recall, or made prior inconsistent statement

Question 11

Is character evidence admissible?

Answer 11

No because it’s hearsay, opinion, tendency or credibility evidence, except:
- Per ss109 and 110 a criminal defendant may admit evidence of good character
- But then evidence can be admitted by prosecution that proves defendant is not of good character
- If in cross, s192 leave is required: s112

Question 12

What does legal advice privilege apply to?

Answer 12

Per s118:
- a confidential communication between client and lawyer
- a confidential communication between two lawyers acting for client
- contents of a confidential document prepared by client, lawyer or another

…made for the dominant purpose of providing legal advice to the client

Question 13

What does litigation privilege apply to?

Answer 13

Per s119:
- a confidential communication between client or lawyer and another person
- contents of a confidential document

…prepared for the purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding

Question 14

When can one object to giving evidence on the grounds of the privilege against self-incrimination?

Answer 14

Per s128 if giving particular evidence would tend to prove they committed an offence (other than the one they are charged with), but court may give a certificate

Question 15

What is settlement privilege?

Answer 15

Evidence is not to be adduced of communications made between parties in a dispute or between a party and a third party, in connection with an attempt to negotiate a settlement or a document prepared in connection: s131

Question 16

What is the rule about prejudicial evidence in criminal proceedings?

Answer 16

Per s137 in criminal proceedings the Court must refuse to admit the prosecutor’s evidence if its probative value is outweighed (not substantially) by the danger of unfair prejudice to the defendant

Question 17

What are the considerations when granting leave?

Answer 17

Per s192 leave may be granted on such terms as it thinks fit considering extent it would shorten/lengthen, unfairness to party or witness, importance of evidence, nature of proceeding, power to adjourn or make another order/direction

Question 18

Is visual ID evidence admissible in a criminal proceeding?

Answer 18

Per s113 & s114, visual ID evidence is NOT admissible unless ID parade held or it was not reasonable, accused refused, and no person intentionally influenced it

Question 19

Is picture ID evidence admissible in a criminal proceeding?

Answer 19

Per s113 & s115, picture ID evidence is NOT admissible if the pictures suggest they were of persons in custody, or the accused was in custody and the picture was made before that

Question 20

Is opinion evidence admissible?

Answer 20

Per s76, the starting position is no, except:
- per s78 a lay opinion if based on what they perceived and necessary to obtain an adequate account
- per s79 the opinion rule does not apply to a witness with specialised knowledge based on their training, study or experience and the opinion is wholly or substantially based on that knowledge

Question 21

What is an admission?

Answer 21

A previous representation made by a party that is adverse to their interests in the proceeding: Dictionary

Question 22

Is an admission normally admissible?

Answer 22

The hearsay and opinion rules do not apply (making the statement admissible) to first-hand evidence of an admission (and the context necessary to understand it): ss82 & 82

Question 23

What might make an admission inadmissible?

Answer 23

• A threat: s84
• In a criminal proceeding an admission before an investigating official unless circumstances make it unlikely the truth of the admission was adversely affected: s85
• In a criminal proceeding an admission adduced by the prosecution that would be unfair to the accused: s90
• General discretion to exclude: s135 (but consider s136 discretion to limit use)
• In a criminal proceeding, the mandatory exclusion to exclude prejudicial evidence: s137
• Admissions obtained improperly: s138 (including likely false admissions or where no caution was given)

Question 24

What is hearsay evidence?

Answer 24

• Previous representation (otherwise than in the course of giving evidence in the proceeding in question)
• By a person
• Being adduced to prove the asserted fact
• Reasonably supposed they intended to assert the fact

Question 25

Is hearsay evidence normally admissible?

Answer 25

Prima facie inadmissible as proof of asserted fact: s59

And SUPER inadmissible if made by a non-competent person: s61

Question 26

What makes hearsay evidence admissible?

Answer 26

• If relevant for a non-hearsay purpose (e.g. credibility evidence, lay opinion): s60
• If representation made of a contemporaneous statement about feelings, knowledge or state of mind: s66A
• Civil proceedings maker not available: s63
• Civil proceedings maker available: s64
• Criminal proceedings maker not available: s65
• Criminal proceedings maker available: s66
• Business records exception: s69
• Electronic communications: s71
• Admissions: s81

Question 27

What are the discretionary and mandatory exclusions?

Answer 27

s135 - general discretion to exclude if probative value substantially outweighed by danger of unfairly prejudicial/misleading or confusing/waste of time/would demean
s136 - court may limit use if it might be unfairly prejudicial or misleading and confusing
s137 - mandatory exclusion if probative value is outweighed by danger of unfair prejudice
s138 - exclusion of improperly/illegally obtained evidence unless desirability outweighs undesirability

Question 28

When may a court inspect a document or thing to determine its admissibility?

Answer 28

If a question arises about the application of a provision of the Evidence Act in relation to that document or thing, the Court may examine it and draw any reasonable inference: s183

Question 29

What happens if a determination needs to be made as to whether evidence should be admitted, used against a person, or whether a person is competent or compellable?

Answer 29

The court may make that determination as a preliminary question heard in the jury’s absence (unless the court orders otherwise): s189

And it may do so in advance of the evidence being adduced: s192A

Question 30

Can the parties agree to dispense with any particular rules of evidence?

Answer 30

Yes, any of Part 2.1 Division 3 (general rules), Div 4 (examination in chief), Division 5 (cross-examination), Part 2.2 (documents), Part 2.3 (other evidence), or Parts 3.2 (hearsay) through 3.8 (character): s190

Question 31

May the parties agree to certain facts?

Answer 31

Yes: s191

Question 32

Upon what terms may the court grant leave, permission or make a direction?

Answer 32

On such terms as it thinks fit considering the extent to which it would shorten/lengthen the hearing, give rise to unfairness to a party or witness, the importance of the evidence, the nature of the proceeding, and the power to adjourn or make another order or give a direction: s192

Question 33

What is the rule in Jones v Dunkel?

Answer 33

In civil proceedings an unexplained failure to call a witness or give evidence, inference that evidence would not have assisted the party

Question 34

What is the rule in Browne v Dunn?

Answer 34

If party intends to lead evidence that will contradict or challenge opponent witness, must put that evidence to them in cross.

Question 35

In Dempsey v The Queen, why was the coincidence and tendency evidence admissible?

Answer 35

Because it was “most improbable” that the relevant similarities between the events were a coincidence, and the closeness of similarities/that the same methodology was used between the two events were sufficient to invest the tendency evidence with significant probative value.

Question 36

In Dempsey v The Queen, how did the probative value of the coincidence and tendency evidence weigh against any prejudicial effect?

Answer 36

After considering whether the jury might give disproportionate weight to the lack of evidence in respect of one charge and rely only on coincidence or tendency evidence, the court found that clear jury directions would adequately to avoid impermissible uses of evidence.

Question 37

In Dempsey v The Queen, why did the court rule as it did in relation to the photoboard evidence?

Answer 37

The court ruled that the photoboard evidence was admissible because, while there were some factors that reduced the probative value of it (the short duration in dark conditions witnessing the alleged offender, and the limitations of photoboards themselves), on balance the proative value was not outweighed by the danger of unfair prejudice.

Question 38

In Moore v Goldhagen, who was the key witness who failed to give evidence?

Answer 38

The driver of the bus who allegedly struck the plaintiff, who was for obvious reasons a key witness.

Question 39

Was the failure to give evidence made up for by two other accounts (the driver of the following bus, and the driver’s manager) of the driver’s version of events?

Answer 39

No, as hearsay they did not go anywhere near a sworn account tested in cross-examination: Moore v Goldhagen

Question 40

What inference can be drawn from the silence of a party to civil litigation?

Answer 40

Where the absent witness is a party, considerable importance may attach to the inference that nothing the party could say would assist their case, and where that party has elected not to give evidence the court may be bold in its inference. The rule has particular application when the uncalled witness is a party and may permit the court to draw with great confidence any unfavourable inference: Moore v Goldhagen

Question 41

Is uncontradicted evidence easier or safer to accept?

Answer 41

Yes, because doubts about the reliability of witnesses (or the inferences to be drawn) may be more readily discounted in the absence of uncontracted evidence: Moore v Goldhagen

Question 42

What did the court find in Moore v Goldhagen as to the ground of appeal that the court below failed to give due weight to the failure by the respondent’s key witness to give evidence?

Answer 42

That the court did fail to give due weight to that failure, the ground of appeal was made out.

Question 43

What happens if a prior inconsistent statement is put to a witness, but the evidence of the prior inconsistent statement is never formally admitted into evidence?

Answer 43

The contents of documents which allegedly evidence the prior inconsistent statement are not read into evidence merely by questioning a witness and putting the relevant quotes into questions, so the only evidence before the court is the ANSWER to the question, the question itself is not evidence it is only context for the answer: Moore v Goldhagen

Question 44

What should a party do if it wishes to impunge a witness with a prior inconsistent statement?

Answer 44

Evidence of the prior inconsistent statement must be admitted by calling the author of the document, which allows for the contents of the statements to be proved: Moore v Goldhagen

Question 45

What was the outcome of the appeal in Moore v Goldhagen?

Answer 45

The trial miscarried because of the failure of the primary judge to give due weight to the failure to call the bus driver, and because the contents of the reports allegedly evidencing a prior inconsistent statement of the plaintiff were never entered into evidence, so the matter was remitted to a single judge to be reheard.