Evidence

Question 1

Admissibility - what are the three main reasons for excluding evidence?

Answer 1

General rule - all admissible evidence must first be relevant BUT not all relevant evidence will be admissible.

1. Exclusion on the grounds of unreliability (Hearsay)
2. Exclusion on the grounds of tendency to mislead (degree of relevance and weight) Q: is the logical probity outweighed by it’s prejudicial effect. Example = Similar fact evidence.
3. Exclusion on the grounds of public policy. Privilege, consider also illegally or unlawfully obtained evidence.

Question 2

What is the rule in Browne v Dunn and when does it apply?

Answer 2

The rule applies in both civil and criminal cases.

If you want to make a submission or lead evidence which contradicts the evidence of a witness, you MUST first put the alternate version to the witness so that they have an opportunity to comment on it.

The rule does not compel defence to clear up any inconsistencies in the Crown case.

The rule is applicable to cross-examination of an expert witness.

Question 3

What are two consequences of breaching the rule in Browne v Dunn?

Answer 3

1. Judge may rule that the party who failed to put certain allegations to the witness cannot lead evidence of these allegations in chief when their turn comes to present their case.
2. The Judge may recall a witness so that the allegations may be put to them and they have an opportunity to answer.

Question 4

What is relevant evidence?

Answer 4

Relevance is the relationship which exists between two facts.

A fact must be (sufficiently) relevant to be admissible. (CTH s56)

• Smith v The Queen (2001) - if the evidence is not relevant no further question arises about it’s admissibilty.
• IMM v The Queen (2016) - The HC applied the s55 CTH test and said evidence with ‘only some, even slight probative value’ will be prima facie admissible.
• CTH s55(1)

Question 5

What is circumstantial evidence?

Answer 5

Indirect evidence of a fact in issue.

Example: A is charged with assault on B. W testifies they saw A running away from the scene immediatley after hearing B cry out in pain.

W direct evidence A ran away, and circumstantial evidence A assaulted B.

Question 6

Give some examples of circumstantial evidence.

Answer 6

-DNA
-Fingerprints
-Handwriting
-Dental records

Question 7

What is direct evidence?

Answer 7

Evidence that leads directly to the proof of a fact in issue.

Example: A is charged with assault on B. W testifies they saw A running away from the scene immediatley after hearing B cry out in pain.

W direct evidence A ran away, and circumstantial evidence A assaulted B.

Question 8

Explain the difference between prospectant, concomitant and retrospectant evidence.

Answer 8

-Prospectant: includes events that occur BEFORE the event under enquiry but which shed light on what happened. (Circumstantial)

-Concomitant: includes the main event into which the court is inquiring. The moment of substantive importance (MSI). (Can be Cirumstantial OR Direct)

-Restrospectant: events that occur AFTER the event the court is enquring but shed light on what happened. (Circumstantial)

Question 9

What is the rule in Jones v Dunkel?

Answer 9

Failure by a party to call a material witness.

If it appears a witness other than those called to give evidence might have been able to give some relevant evidence on an aspect of a case, the fact finder may find/infer that nothing the witness could have said would have assisted the case.

Cannot infer that the evidence would have damaged the case, but that it would not have assisted.

Question 10

What is an example where Jones v Dunkel may not apply?

Answer 10

See Dyers.

As a general rule does not apply to the failure of defence in criminal trial to give or call witness.

Exceptions to that rule will be rare and a referred to in Azzopardi.

Does not apply against the prosecution UNLESS the prosecutions failure to call a material witness was in breach of the prosecutors duty to call a material witness.

Question 11

What is the Azzopardi Rule?

Answer 11

Defendant not giving evidence, where an adverse inference may follow from that.

Conclusion of Guilt may be more safely drawn from the proven facts when a defendant elects not to give evidence of relevant facts which, if they exist, must be within the defendants knowledge.

Cannot assume because defendant does not give evidence that he is guilty. He is not bound to give evidence.

Question 12

What is a leading question?

Answer 12

One which either:

a) suggests the desired answer to the witness (he hit you didn’t he); OR

b) assumes a fact which has yet to be established by the evidence (what did you do after he hit you?)

Question 13

Give an example of a leading question.

Answer 13

The accused was carrying a gun wasn’t he?

What was the accused carrying?

Question 14

Give an example of a non-leading question.

Answer 14

Was the accused carrying anything?

If yes, what was it?

Question 15

What is the test in Briginshaw v Briginshaw?

Answer 15

When applying a civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding wherther evidence actually proves a fact, to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.

AKA

When considering the probative value of the evidence led to prove a fact in issue, the tribunal of fact ought bear in mind the seriousness of the allegation in issue and the gravity of the consequences of a finding.

AKA

The nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

CTH - s140(2)

Question 16

What can you ask in re-examination?

Answer 16

Only questions about issues that arose in cross-examination.

Cannot use re-examination to raise new issues which were forgotten in evidence in chief.

Must be a need to re-examine.

Question 17

Prior inconsistent statements.

Answer 17

Does not necessarily render sworn evidence neglibile, depends on the circumstances.

The statement cannot be treated as proof of facts stated unless the maker of the statement happens to be a party to the proceedings, in which case it may be recieved as an admissions OR unless it is recieved under the statutory exceptions to the hearsay rule (e.g Business Records).

Question 18

Can a party impeach it’s own witness?

Answer 18

Hostile witness.

No. Counsel cannot cross examine them or put to them any prior inconsistent statement.

Counsel can call a second witness which may have the effect of cancelling out the unfavourable evidence of the first one.

QLD EA s17
CTH EA s38

Question 19

What is a hostile witness?

Answer 19

One who is unwillling to tell the truth for the advancement of justice.

R v Hayden [1959]

Question 20

When is a witness declared hostile?

Answer 20

A witness should not be declared hostile before they are sworn.

Guided by their behaviour in the witness box.

A witness is NOT hostile merely becasue their testimony is against the party calling the witness.

Question 21

Can a witness be cross-examined as to credit in Qld?

Answer 21

Cross-examination to credit is impermissible UNLESS an acceptance of the truth of the matter suggested would in truth affect credibilty.

QLD EA s20

Question 22

What is a question as to credit?

Answer 22

A question that is not relevant to the proceeding except that an admission of the questions truth may affect the witness’s credit by injuring their character.

Question 23

Can you elicit hearsay evidence in cross-examination?

Answer 23

No.

Question 24

Can a witness use documents to refresh memory?

Answer 24

A witness cannot give evidence to court using a pre-prepared statement BUT can refer to a document in order to refresh memory, provided:

• have leave of the court
• the document was made substantially at the same time as the occurrence of the events
• must be accepted as accurate by the witness while the facts were still fresh in memory
• must be produced to the court/opposite party on demand

Question 25

Does the document need to be produced once it has been used to refresh memory?

Answer 25

Not normally. If a document has been used to refresh memory it is not necessary for the original to be produced. BUT, if the witness can only testify because of the document, the original must be produced.

Question 26

Can the cross-examining party call for and inspect the document if used to refresh memory?

Answer 26

Yes can call for it to check it without making it evidence. If the XXN on the document, provided that XXN does NOT go beyond the parts that were used for refreshing the memory of the witness the document will not be made evidence.

Question 27

If a document is used to refresh memory, and then witness is XXN on the document, does the whole of the document become evidence?

Answer 27

If the document is called upon for inspection AND used to XXN the witness AND the XXN goes beyond the parts of the document that were used to refresh memory, THEN the whole of the document becomes evidence as to the truth of its contents. Owens v Edwards Walker v Walker

Question 28

Which sections deal with refreshing memory?

Answer 28

QLD EA 101(3) - if a note to refresh goes into evidence in one of the ways described, it is evidence of facts within the note takers personal knowledge. CTH EA 32 & 34 Must have leave of the court.

Question 29

Are documents used to refresh memory admissible at common law?

Answer 29

No becasue they are considered prior consistent statements. Prior consistent statements are generally inadmissible.

Question 30

Which QLD section deals with the exclusion of evidence?

Answer 30

QLD EA s130 - Rejection of evidence in a criminal proceeding Noting in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

Question 31

Which Commonwealth section deals with the exclusion of evidence?

Answer 31

CTH EA s137 - Exclusion of prejudicial evidence in a criminal proceeding. The court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Question 32

What is the rule in Bunning v Cross?

Answer 32

The High Court found that the discretion to exclude evidence improperly obtained can rightly be exercised where the unfairness to the defendant if the evidence were admitted, outweighs the public interest in obtaining evidence to aid the enforcement of the law.

Question 33

What is the rule about prior consistent statements?

Answer 33

Rule: A party may not in general call evidence supporting the credibility of a witness by that party. HENCE the party may not call evidence supporting the disposition of the witness to tell the truth.

Question 34

What is the exception to the rule about prior consistent statments?

Answer 34

A previous consistent statement by a witness is admissible to rehabilitate credit by rebutting the suggestion that the testimony is a construction subsequent to the events in question (rebutting recent invention.

Question 35

What are the rules around prior INconsistent statements?

Answer 35

QLD 17 (Impeaching) QLD 18 (Prior statements) QLD 19 (Written prior statements) QLS 101 (Makes the statement admissible) A witness can be brought to the attention of a prior statement if it is inconsistent with their current evidence. A statement remains inconsistent with the sworn evidence even though they cannot remember whether they made it.

Question 36

What happens if the witness admits they made a prior inconsistent statement?

Answer 36

The purpose of discrediting them has been achieved. Inconsistency can ONLY got to the credit of the witness and is NOT evidence of the facts asserted (s101).

Question 37

Can you call evidence in rebuttal once a case is closed?

Answer 37

No party is normally permitted to adduce fresh evidence after its case is closed. If evidence is legitimately capable of being called in rebuttal, either as a right or because the circumstances are such that a court can and should properly exercise it's discretion to do so, the party calling the evidence is NOT re-opening its case but ansering it's opponents.

Question 38

List the times you may be allowed evidence in rebuttal (Criminal Cases).

Answer 38

- Credit issues: when asking a collateral Q opens up a new issue relevant to the case. - Formal, technical, non-contentious matter which clears up ambiguity. - Unavailable evidence - Accused's good character: where the accused is put forward as a person of good character, the Crown is entitled to call rebutting evidence. Subject to this, rebuttal evidence must be of relevance to the actual issues.

Question 39

How does rebuttal evidence work in civil cases?

Answer 39

Evidence in reply must normally be confined to rebutting the defendant's case rather than confirming the plaintiff's. Rules are likely to be applied less strictly. Consider the unforseeability of the issue on which the plaintiff seeks to call evidence in reply, the extent to which the plaintiff is surprised is relevant.

Question 40

Are there any exceptions to calling evidence in rebuttal for civil cases?

Answer 40

Evidence from a particular witness may be permitted where the plaintiff was led by the defendant to believe the defendant would call the witness and the witness wasn't called. NB mere expectation is not enough. Evidence by the plaintiff is permissible in reply almost as a right in respect of an issue on which the burden of proof lies on the defendant.

Question 41

What is an example of evidence which does not require proof?

Answer 41

Judicial notice. Certain matters are so well known they do not have to be proved in evidence - on those matters a court will take judicial notice. Examples: - Acts of Parliament - Signatures of various persons attached to documents (e.g Registrar on a VJR) - Common Law presumption that scientific instruments are accurate: - Speedometer - Speed Camera - Tape Measure

Question 42

What is the finality rule?

Answer 42

Collateral questions (one going only to credit) as a general rule cannot be reubtted or objected to. Example: if witness is asked if they talked to another about not giving evidence and they deny it - that is it. QLD EA s20

Question 43

What are the 5 exceptions to the finality rule?

Answer 43

1. Previous inconsistent statements 2. Criminal History 3. Bias 4. Witnesses reputation for lack of veracity 5. Physical or mental incapacity R v Lawrence [2001] QCA 441 If the only issue in the case is consent, then the complainant's credit is inherently a fact in issue. Independent evidence rebutting the witnesses denials on matters going to credibilty is NOT ordinarily admissible BUT if the evidence has real probitive value with respect to the facts in issue then it ought not be excluded.

Question 44

What is the best evidence rule?

Answer 44

Limited application nowadays. The last vestige is the requirement that the original of a private document must be produced in order to prove its contents UNLESS its absence can be explained. Limited to written documents and does not now apply to modern tapes, films etc.