Evidence Flashcards
Re Kneebone
What is the relevant section of the Evidence Act?
s38 - unfavourable witness
mother present at time of rape by stepfather; prosecution failed to call mother as witness
full width of s38 yet to be determined
Stanoevski v Queen
s192 EA
where ever leave is required, s192 engaged; quote Stanoevski
“in all cases the court must take into account matters prescribed by s192(2) as well as matters which may be relevant to particular case”
s192 not exhaustive list
Smith v The Queen
s55 EA
Relevance - given broad interpretation
evidence is either relevant or its not
no discretion exercised in determining relevance
s55 Relevance
Smith v The Queen
IMM v The Queen
Honeysett v the Queen
s.79(1) opinion evidence; specialised knowledge
IMM v The Queen
Probative value
evidence should be presumed to be admitted and taken at its highest to determine the probative value of evidence
Esso Australian Resources Ltd v Federal Commissioner of Taxation
High Court accepts the ‘dominant purpose’ test for legal professional privilege for the common law (in line with test in s.118 EA)
Mann v Carnell
Common law test of privilege - loss of privilege by waiver of privilege - inconsistency between conduct of client and maintenance of confidentiality
s.122 changed to reflect CL test
Dasreef v Hawach
Expert opinion - exception to opinion rule - s.79
2 criteria under s79:
1. Witness has specialised knowledge based on person’s training, education or experience; AND
2. Opinion is whollym or substantially based on that knowledge
Dyers v R
Cult case
General rule - trial judge should not direct jury that they are entitled to infer evidence which accused could have given would not assist accused (Jones v Dunkel inference not available in criminal proceedings)
s.20 Comment on failure to give evidence
