Evidence Flashcards
SH v R (2012)
Capacity and s 13(5), EA
Instruction not given by judge to complainant under s 13(5)
Conviction set aside for non-compliance with s 13(5); strict compliance required
Australian Crime Commission v Stoddart (2011)
No common law privilege against spousal incrimination
Jones v Dunkel (1959)
If witness in party’s ‘camp’ not called, inference can be drawn that evidence would not have supported that party
Dyers v The Queen (2002)
Jones v Dunkel does not generally apply in criminal law
Azzopardi v The Queen (2001)
Cannot give directions to jury suggesting guilt as result of defendant’s failure to give evidence (as distinct from failure to give explanation)
Judge may only comment on D’s failure to give explanation where facts peculiarly within knowledge of D
Judge cannot give direction to jury regarding D’s failure to give explanation
Adam v The Queen (2001)
Evidence “unfavourable” to a party will include evidence that is merely unhelpful to that party
Assessment of relevance assumes that evidence will be accepted
Prior inconsistent statement relevant to (inadmissible) hearsay purpose, and hence not just relevant to credibility (Finding modified by enactment of s 101A)
Browne v Dunn (1893)
Adverse imputations must be put to other party or witness impugned
MWJ v R (2005)
Rule in Browne v Dunn does not apply to defendant in criminal law
National Australia Bank v Rusu (1999)
Authenticity of documents material to their admissibility
Subsequently rejected in ACCC v Air New Zealand (No 1) (2012); current status unclear
ACCC v Air New Zealand Ltd (No 1) (2012)
Authenticity of documents not material to admissibility
Rejected National Australia Bank v Rusu; current status unclear
Evans v The Queen (2007)
s 53 does not apply to in-court demonstrations
In-court demonstration relevant to proof of facts in issue
R v Kneebone (1999)
Duties of crown prosecutors to call witnesses
Papakosmas v The Queen (1999)
Circumstances in which statement is made might make it probative of facts asserted (and hence relevant for the purposes of s 55)
Evidence is not unfairly prejudicial merely because it increases the likelihood of conviction
Unfair prejudice can include procedural disadvantages and risk of use of evidence on improper, emotional basis
Smith v The Queen (2001)
No discretion to be exercised in determining relevance
Identification evidence of police irrelevant, as incapable of rationally affecting assessment by jury of fact in issue
Lithgow City Council v Jackson (2011)
Purported “opinion” falling short of threshold of relevance under s 55
Business records must comply with s 78 (lay opinion exception to opinion rule)
Admissibility of lay opinion evidence: s 78, Evidence Act
Opinion must be based on what person saw, heard or otherwise perceived about matter or event in question
Opinion as to nature of fall not admissible, as not based on what person saw, heard or otherwise perceived
Evidence of opinion must be necessary to obtain adequate account or understanding of perception of matter or event
Lee v The Queen (1998)
Evidence of prior representation needs to be assessed by reference to which facts W intended to assert s 60(2) modifies reasoning in Lee (in that the section operates on second-hand and more remote hearsay) s 60(3) preserves result in Lee (in excluding admissions in criminal proceedings from s 60)
Sio v The Queen [2016]
s 65(2)(d)(ii): “circumstances that make it likely that the representation is reliable” Court must consider circumstances in which representation made, not merely apparent truthfulness of person making it
Graham v The Queen (1998)
s 66, EA and prior complaint evidence
Pre-dated enactment of s 66(2A); s 66(2A) has largely overruled Graham
Dasreef Pty Ltd v Hawchar (2011)
Admissibility of expert opinion evidence: ss 76(1), 79(1)
Expert must identify facts or assumptions on which opinion based (“assumption identification rule”)
Expert’s evidence must explain how specialised knowledge applies to facts observed so as to produce opinion propounded (“statement of reasoning rule”)
Honeysett v The Queen (2014)
Expert opinion evidence
Expert anatomist’s opinion not based on specialised knowledge, but merely on subjective impressions from viewing images
Tuite v The Queen (2015)
Reliability of evidence not material to admissibility under s 79(1)
Knowledge may be “specialised knowledge” even if novel or controversial
Em v The Queen (2007)
s 90: factors relevant to other exclusionary provisions may or may not be relevant to discretion to exclude admissions
ss 138-139: refusal of unlawfully or improperly obtained evidence
IMM v The Queen (2016)
Reliability and credibility not material to probative value under ss 97, 137 (affirming Shamouil, rejecting Dupas)
Hughes v The Queen (2017)
“Significant probative value” of tendency evidence
Similarity goes to probative value, not admissibility: ss 97, 101
R v Ellis (2003)
Pfennig (propensity evidence inadmissible if rational view of evidence consistent with innocence) does not apply to Evidence Act ss 97-98 or 101
Stanoevski v The Queen (2001)
s 192(2) matters must be taken into account by court in granting leave or giving directions
Esso Australia Resources Ltd v Commissioner of Taxation (1999)
‘Dominant purpose’ test adopted as test for privilege at common law
Mann v Carnell (1999)
Test for waiver of privilege: is conduct inconsistent with continued maintenance of privilege?
Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing (2013)
Mann v Carnell applies to interpretation of s 122
Kaye v Woods (No 2) (2016)
Privilege waived in respect of documents through solicitor misconduct (as actions sufficient to prompt civil penalty)
R v Shamouil (2006)
Reliability and credibility not relevant to assessment of probative value under s 137
Affirmed in IMM v The Queen
R v Sood (2007)
Reliability and credibility not relevant to probative value
Competing inferences from evidence not relevant to probative value
Affirmed in IMM v The Queen
Jones v The Queen (2014)
Hoch (tendency evidence should be excluded if reasonably capable of explanation on basis of concoction) does not apply to EA
Qantas Airways Ltd v Gama (2008)
Briginshaw test remains proof on balance of probabilities, not ‘third standard of proof’
Degree of satisfaction required in determining that standard of proof has been discharged may vary according to seriousness of allegations of misconduct
s 140, EA equivalent to common law balance of probabilities test
