Evidence Flashcards
What is Opinion Evidence?
Examples - Specific examples of lay options are [Odgers pg 531 - 78.60] are -
Opinions as the evidence of people
- age of a person
- speed at which something is travelling - Gioia - state of weather, road or floor,
- Where a person was intoxicated
Unless this there is an exception under s 76 or s 78 of lay opinion all statements appear to inadmissible.
S 76 explains that evidence is not admissible to prove the existence of a fact, and 78 explains that the Lay Person exception can apply regarding what a person saw, heard or otherwise perceived about a matter.
Another exception exits within s 77 similar to that of hearsay where opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact.
Eg for a non-hearsay purpose.
One also needs to contrast what a person saw vs is probative value and relevance in s 55 and s 137 where in a criminal proceeding the court must refuse to admit evidence where it’s probative value is outweighed by the prejudicial nature of the evidence.
Explain Tendency Evidence..
The Tendency Rule - s 94:
Generally speaking evidence of character of is not admissible to prove that a person has a tendency, unless the court thinks that the evidence will have significant probative value.
This then immediately brings us to Part 3.11 being the DISCRETIONARY AND MANDATORY EXCLUSIONS:
Generally speaking the probative value of evidence must outweigh the prejudicial affect of evidence -
S 135 -137 - the court may refuse unfairly prejudicial evidence, misleading or confusing or a waste of time; In particular where it is a criminal matter s 137 makes is mandatory that this prejudicial evidence be excluded.
Note in s 97(b): (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Significant is defined in R v Lock** as more than mere relevance and in **Imm v Queen as depending on the overall facts or importance or of consequence.
Note the restriction within s 101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
Is an admission subject to Hearsay Rules?
Explain the general rules..
Admissions Generally
An ‘admission’ is defined in the Dictionary to the Evidence Act as a previous representation made by a party to proceedings ( including a defendant in criminal proceedings) which is adverse to the person’s interest in the outcome of the proceedings.
The hearsay rule and the opinion rule do not apply to evidence of an admission: s. 81 Evidence Act.
But for this provision, strictly speaking, an admission would be inadmissible because of the hearsay rule, because it is an out of court statement tendered to prove the truth of the statement.
Aspects of Hearsay -
S81 - Hearsay rules does not apply to an admission, generally speaking.
S 84 - aggressive regarding the questioning of the accused.
S 85(s) - Reliability of admissions - sub-section 2 truth was adversely affected.
Notes, the accident, drugs and morphine all having a dramatic affect on the accussed. Also not Sub-section (3)(a)-(b) where the characteristics of the person making the admission must be considered and whether the whole of the admission was made from questioning - which were particularly aggressive.
The truth of the terms of the confession may be taken into account: Donnelly (1997) 96 A Crim R 432. The court may take into account:
- the physical and mental characteristics of the defendant,
- the nature of the questions and the manner in which they were put,
- and any threat, promise or inducement s. 85(3) Evidence Act
S 90 - the court may in it’s discretion then exclude the admission if it would be unfair in the circumstances to the accussed. Also not the probabtive value vs the prejudicial affect on the victim per s 137 generally.
Is Expert Opinion Admissible and what are the rules?
What Practice Directions Apply?
An opinion is not admissible to prove the existence of a fact that the opinion was expressed about.
However within section 79 within the expert opinion provisions the test regarding specialised knowledge where the expert has (1) expert training and (2 the opinion s based on this expert training.
The key question for the defence is how relevant us the evidence to a fact in issue and what is the probative value of such a fact.
The report could be argued via s 55 that there is little of no probative value per section 5. In other words – what element of the offence does this report ink to. If there exists no real link then there is no probative value. One could therefore argue that if the evidence outweighs the probabtive value substantially and is misleading or prejudicial then the court may refuse to admit.
Within section 136(b) where the evidence is misleading or confusing then there is a general discretion to exclude evidence.
In summary, yes there is options to adduce evidence via the expert opinion rule but the evidence still needs to have a probative value that is not misleading or prejudicial.
Practice Notes:
SC Gen 10 - Personal Injury
SC Gen 11 - General Rules
SC EQ 5 - Equity
PRACTICE NOTE SC Gen 11
Supreme Court - Joint Conferences of Expert Witnesses
Application
2. This Practice Note applies to all civil appeals and proceedings before the Court. This Practice Note does not apply to proceedings in the Court of Criminal Appeal or criminal proceedings in the Common Law Division.
Introduction
4. The objective of this Practice Note is to facilitate compliance with any directions of the Court given pursuant to Division 2 of Part 31 of the UCPR.
Objectives of joint conferences
5. The objectives of such directions for a joint conference of experts include the following:
the just, quick and cost effective disposal of the proceedings;
the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;
the consequential shortening of the trial and enhanced prospects of settlement;
apprising the Court of the issues for determination;
binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and
avoiding or reducing the need for experts to attend court to give evidence.
Preparing for a conference
6. The parties should agree on the following matters:
the experts to attend;
the questions to be answered; and
the materials to be placed before the experts.
- The experts to attend should be those specified in the Court’s order. If none are so specified, the parties should arrange for experts to attend who have expertise pertinent to the questions to be asked. Separate conferences may be required between experts in different specialities in relation to different issues arising in the case.
- The questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration.
- The questions to be answered should be framed to resolve an issue or issues in the proceedings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.
- The materials to be provided to each of the participating experts should include:
the Code;
this Practice Note;
an agreed chronology, if appropriate;
relevant witness statements or, preferably, a joint statement of the assumptions to be made by the experts, including any competing assumptions to be made by them in the alternative (which should be specified clearly as such);
copies of all expert opinions already exchanged between the parties and all other expert opinions and reports upon which a party intends to rely; and
such records and other documents as may be agreed between the parties or ordered by the Court.
- The participating experts should each be provided, in advance, with the questions and materials referred to in paragraphs 8, 9 and 10.
Convening a conference
12. Subject to any directions given by the Court concerning the range of dates for the convening of the conference, the parties should communicate amongst themselves to fix a mutually convenient date, time and place for the conference.
- The conference should take the form of a personal meeting. Alternatively the participants may choose to hold the conference by teleconference, videolink or similar means if a personal meeting is not practicable.
- The experts should be given a reasonable opportunity to prepare for the conference by ensuring that before the conference the experts have:
an opportunity to seek clarification from the instructing lawyers or the Court concerning any question put to them, and
access to any additional materials which the parties are able to provide and which the experts consider to be relevant.
- In order to enable the experts to have a reasonable opportunity to prepare for the occasion, the conference should not take place until the expiration of at least 14 days following the provision of the materials referred to in paragraph 11.
The role of experts at a conference
16. The experts should provide their respective opinions in response to the questions asked based on the witness statements or assumptions provided. Where alternative assumptions are provided the experts should provide their respective opinions on the alternative assumptions.
- The experts may specify in their report other questions which they believe it would be useful for them to consider.
- Pursuant to paragraph 4(2) of the Code, an expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter.
- The experts should accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer.
Conduct of the conference
20. The conference should be conducted in a manner which is flexible, free from undue complexity (so far as is practicable) and fair to all parties.
- The participating experts may appoint one of their number as a chairperson. If one of them so requests and the parties agree or the court orders, some other person may be appointed to act as chairperson.
- Secretarial or administrative assistance should be provided by the parties if so requested by the experts.
- If the participating experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of matters agreed, matters not agreed and reasons for disagreement.
- The conference may be adjourned and reconvened as may be thought necessary by those participating.
Joint report
25. Pursuant to UCPR Rule 31.25 and paragraph 4 of the Code, the report should specify matters agreed and matters not agreed and the reasons for non agreement.
- The joint report should, if possible, be signed by all participating experts immediately at the conclusion of the conference and, otherwise, as soon as practicable thereafter.
- Prior to signing of a joint report, the participating experts should not seek advice or guidance from the parties or their legal representatives except as provided for in this Practice Note. Thereafter, the experts may provide a copy of the report to a party or his or her legal representative and may communicate what transpired at the meeting in detail if they wish.
- The report of the joint conference should be composed by the experts and not the representatives of the parties. The report should be set out in numbered paragraphs and should be divided into the following sections:
statement of agreed opinion in respect of each matter calling for report;
statement of matters not agreed between experts with short reasons why agreement has not been reached;
statement in respect of which no opinions could be given e.g. issues involving credibility of testimony;
any suggestion by the participating experts as to any other matter which they believe could usefully be submitted to them for their opinion; and
disclosure of any circumstances by reason of which an expert may be unable to give impartial consideration to the matter.
- The joint report, when signed by all participating experts, should be forwarded to the Court.
Role of legal representatives
30. Legal representatives who attend a conference pursuant to an order of the Court or who are approached for advice or guidance by a participating expert should respond jointly and not individually, unless authorised to do so by the legal representatives for all other parties with an interest in the conference.
- Such advice or guidance may be provided by:
responding to any questions in relation to the legal process applicable to the case;
identifying relevant documents;
providing further materials on request; and
correcting any misapprehensions of fact or any misunderstanding concerning the conference process.
- The legal representatives of the parties should perform any other role the Court may direct.
Provision of information
33. The legal representatives of the parties should inform the associate of the judge who directed the conference of the date of a conference when arranged, the names of the participating experts and the questions submitted.
- It is not intended that the joint report provided to the Court or that information provided to the Court concerning a conference will be evidence in the proceedings unless admitted into evidence in the ordinary way (that is, by consent or by tender subject to the SCR and the rules of evidence).
Further directions
35. Pursuant to UCPR Rule 31.25(2), an expert directed to confer may apply to the Court for further directions. That may be done, at the expert’s election, by arrangement with the associate of the judge who directed the conference. A party may also apply for further directions in relation to a directed conference.
Explain evidentiary requirements of Personal Injury Expert Opinion Rules..
Single Expert Witnesses
- SC Gen 10 - Personal Injury
- Unless cause is otherwise shown, a single expert direction will be made in every proceeding and at the earliest practicable time in the course of case management.
- A “single expert direction”, when made in those terms, means that the following directions are to be taken as having been made, with such variations as may be specified at that time or subsequently:
a. Any expert evidence is confined to that of a single expert witness in relation to any one head of damages, including but not limited to the nature, extent and cost of required nursing care or domestic care (including claims under Griffiths v Kerkmeyer and under Sullivan v Gordon), physiotherapy, speech therapy, home modification, motor vehicle or aids and equipment, being evidence of the kind customarily given (by way of example) by rehabilitation consultants, occupational therapists, nursing and domestic care providers, architects, builders, motor vehicle consultants, and by aids and equipment suppliers.
(a) Evidence may be provided by the same single expert in relation to more than one head of damages provided the expert is appropriately qualified. It is contemplated, however, that there may be a number of single expert witnesses retained or appointed in the one proceedings.
(b) In relation to any head of damages as to which any party wishes expert evidence to be adduced, the parties are to agree on a single expert to be retained and are to obtain the concurrence of the expert within 14 days from a date specified in the order as the commencement date of the direction, otherwise within 14 days from the making of the direction.
Maker of document (expert report) no longer available - is it admissible?
Where the maker of a document is now dead then the previous representation being a document would be regarded as hearsay.
The exception is within section 65 where the maker is no longer available – they are dead.
Section 65(2)(c) provides that the hearsay rule does not apply to a previous representation where a person who saw heard or the rise perceived the representation was made in circumstances that it was highly probable that the representation is reliable. Because it is an expert report then it would be regarded as highly probable of being reliable.
Note also within section 65(8)( b) which relates to documents where the hearsay rule does not apply to documents so far as it contains a previous representation, thus there are two avenues here.
See pg 438 Odgers–Cvetkovic v The Queen – Only first hand hearsay falls within the document within 8(b) as it must be first hand hearsay which covers this Division as noted within section 62 – restriction to first hand hearsay.
What is the test for Privilege when proceedings have commenced or are likley?
Are documents admissbile if under this privilege?
Litigation privilege per s 119 evidence should not be adduced if an objection from a client to the disclosure of information that relations to confidential communication or within a document that was between a client and another person or a lawyer acting for the client and another person that was made for the dominant purpose of being provided with legal services relating to a Proceedings.
Note that the other person does not need to be a lawyer. Where a client is communicating with another person about a proceedings this would fall within the scope of section 119.
See Esso v Federal Commissions.
Note that the client may consent to disclosure within section 133. And, where there is an issue of fraud being involved in the communication there is a counter-exception of admissibility within section 122.
What is a Voir Dire?
A Voir Dire is a trial within a trial.
The core provisions within the evidence act is section 189.
The purpose is to determine whether evidence should be admitted, whether evidence maybe used against a person or whether a witness is competent or compellable.
A Key distinction in particular where there is a jury evidence of a admission under 138 if it has been obtained improperly or illegally obtained admissions it is to be heard without a jury.
Note also that in determining whether the defendants admission should be admitted into evidence the issue of the truth or untruth is to be disregarded.
Note that within section 142 the proof required in the determination of a preliminary question is the balance of probabilities, and not beyond a reasonable doubt.
Note further, that within s 189 that it further provides that if evidence is to heard regarding the truth of an admission and it is to be heard within the voir dire then the truth or untruth of the admission is to be disregarded.
Section 189 applies to both civil and criminal proceedings.
Meaning of ‘preliminary question’
For the purposes of this provision, a ‘preliminary question’ is a question regarding the:
admission of evidence, or
use of evidence, or
competence or compellability of a witness
which relies on the existence of a particular fact.
The fact to be determined on a hearing for a preliminary question is treated as a fact in issue for the purpose of Chapter 3. This modifies the general rule that ’fact in issue’ means an ultimate fact in issue (s55).
Standard of proof
The existence of ‘a fact in issue’ in a particular hearing must be determined on the balance of probabilities (s142).
Nature of a voir dire
Subject to the expanded definition of ‘fact in issue’ in s189(7), the rules of evidence apply to a voir dire.
A voir dire is part of the trial itself. It is not an interlocutory hearing for the purpose of s75 ([Hearsay] Exception – interlocutory proceedings): Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637.
Section 189(6) provides that s128(10) does not apply on a voir dire. Section 128(10) removes an accused’s privilege against self-incrimination in criminal proceedings when he or she gives evidence and is questioned about a fact in issue in the proceeding. Therefore, an accused may claim the privilege against self-incrimination on a voir dire regarding the facts in issue in the trial.
Limits on a voir dire
A party must identify the preliminary question with sufficient specificity and show there is a significant issue to be determined before the court will hold a voir dire: R v Lars (1994) 73 A Crim R 91.
A jury:
must not be present on a hearing to determine a preliminary question regarding the admissibility of an admission or whether evidence is an admission for the purpose of the Act;
may be present when determining any other preliminary question only if the court orders that the jury be present. Courts rarely allow the jury to be present at these hearings because of the risk jurors will hear inadmissible material.
Under s189(3), on a hearing to determine a preliminary question regarding the admissibility of an accused’s admission, the truth or falsity of the admission is irrelevant unless the accused introduces the issue.
Section 189(8) prohibits a party from adducing evidence of what a witness said or did during a preliminary hearing if the jury was not present unless:
the evidence is inconsistent with other evidence the witness has given in the proceeding; or
the witness has died.
On its terms, s189(8), applies only to a witness’ statements during a hearing to determine a preliminary question. The prohibition does not directly apply to evidence given in other hearings, such as on an application to stay the proceeding, or an application for an adjournment: R v Rich (Ruling No 26) [2009] VSC 159.
Status of evidence on a voir dire in civil proceedings
Evidence taken on a voir dire in a civil proceeding without a jury is, provided it is relevant and not rendered inadmissible by an exclusionary rule, evidence in the proceeding itself unless the court makes an order qualifying the admission or use of the evidence, such as under s135 or s136. There is no need for the court specifically to rule that individual pieces of evidence are admitted in the substantive hearing or for the witness to repeat the evidence (as is necessary when there is a jury): ASIC v Rich [2004] NSWSC 1062; Brown v Commissioner of Taxation (2001) 119 FCR 269; [2002] FCA 318; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. (See discussion in Stephen Odgers, Uniform Evidence Law (12th ed, 2016), [EA.189.120]).
Significant other sections that are or may be relevant
Relevant evidence (s55)
Relevant evidence to be admissible (s56)
Privilege against self-incrimination in other proceedings (s128)
Admissibility of evidence – standard of proof (s142)
Further references
Stephen Odgers, Uniform Evidence Law (12th ed, 2016) [EA.189.20]-[EA.189.140].
Can expert opinion be made on assumptions alone from an ‘Expert’?
No it can’t be based on assumptions
- per Dasreef vs Hawchar, s 79 EA
Opinion must be based on speciliased knowledge and training
Summarise Procedure for Expert Evidence
- Relevance – s 55
- Hearsay Objections – Opinion/Expert Opinion
- Expert Evidence- UCPR/SC EQ 5
- Counsel must seek directions before calling an expert witness per 31.19
- Expert report – 31.27 Expert evidence given in chief- .
- Format per Pt 4 of UCPR & contents per Sch 7 & with 31.27 then admissible per r 31.29 – 31.30 for district court
- Code of Conduct for Experts within Schedule 7 / 31.23
- Served per 31.28 no later than 28 days before the date of the hearing.
- Overriding purpose within section 56 of CPA.
Case: Dasreef- Expert opinon s 79 EA must be based on specialised knowledge based on the person’s training, study or experience - assumptions are not enough
Clyne – alleging facts in a document based on proper basis – BR 64
Practice Notes
SC Gen 10 - Single Expert - differing service options
SC Gen 11 - Joint Conferences of Expert Witnesses
SC EQ 5 - Equity - Expert Evidence in the Equity Division
DC 1 - District Court
SC Gen 10 - Supreme Court Matters -
Single Expert Witnesses
- Unless cause is otherwise shown, a single expert direction will be made in every proceeding and at the earliest practicable time in the course of case management.
- A “single expert direction”, when made in those terms, means that the following directions are to be taken as having been made, with such variations as may be specified at that time or subsequently:
a. Any expert evidence is confined to that of a single expert witness in relation to any one head of damages, including but not limited to the nature, extent and cost of required nursing care or domestic care (including claims under Griffiths v Kerkmeyer and under Sullivan v Gordon), physiotherapy, speech therapy, home modification, motor vehicle or aids and equipment, being evidence of the kind customarily given (by way of example) by rehabilitation consultants, occupational therapists, nursing and domestic care providers, architects, builders, motor vehicle consultants, and by aids and equipment suppliers.
(a) Evidence may be provided by the same single expert in relation to more than one head of damages provided the expert is appropriately qualified. It is contemplated, however, that there may be a number of single expert witnesses retained or appointed in the one proceedings.
(b) In relation to any head of damages as to which any party wishes expert evidence to be adduced, the parties are to agree on a single expert to be retained and are to obtain the concurrence of the expert within 14 days from a date specified in the order as the commencement date of the direction, otherwise within 14 days from the making of the direction.
(c) Failing agreement and concurrence within that time, the parties are to notify the court forthwith, and the court will, pursuant to Pt 39, appoint a court expert to be the single expert.
(d) Within 14 days from the selection or appointment of a single expert witness, the parties are to brief the expert, in such manner as the parties may agree, with materials sufficient to enable the expert to prepare a report. If the parties do not so agree, they are to notify the court forthwith and the court will give directions as to how the single expert witness is to be briefed.
(e) If the parties agree or the single expert witness so requests, the plaintiff in the proceedings is to submit to clinical examination by the single expert witness.
(f) Within 21 days from the date on which a single expert witness is so briefed, the expert is to send his or her report to each of the parties to the proceedings, through their legal representatives.
(g) A single expert witness may be requested to provide a supplementary report taking into account any new or omitted factual material. The provisions of this practice note apply to such a supplementary report mutatis mutandis.
(h) Any party may, within 14 days from receipt of the report, put a maximum of 10 written questions to the expert, but for the purpose only of clarifying matters in the report unless the court otherwise grants leave. The expert is to answer the questions within 14 days.
(i) The report of a single expert witness and any question put to the expert and the expert’s answer thereto may be tendered by any party at the trial subject to all just exceptions.
(j) A single expert witness may be cross-examined at the trial by any party.
(k) A single expert witness’s fee for preparation of the report and any supplementary report and for attending court, if required to do so, is to be paid by the parties equally, subject to other agreement or direction and subject to any later order concerning the costs of the proceedings. A single expert witness’s fee for answering questions put by a party is to be paid by the party, subject to the same qualification.
(l) A single expert witness may apply to the court for directions.
8. Nothing in this practice note is intended to require the retaining or appointment of a single expert witness in relation to liability, the nature or extent of injury or disability, or the causation of injury or disability.
What procedure do you adduce a witness statement or affidavit?
Adducing documents – Witness Statements and Affidavits
EA – 37(3) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.
EA - 52 ADDUCING OF OTHER EVIDENCE NOT AFFECTED
giving evidence or documents being tendered in evidence
UCPR – 2.3(k) (k) the giving of evidence at any hearing, including whether evidence of witnesses in chief must be given orally, or by affidavit or witness statement, or both,
UCPR - (3) The court may order that all or any of a witness’s evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement; 31.4 Court may direct party to furnish witness statement
Can evidence of a previous conviction be adduced?
Generally speaking - No per 91 EA
Exceptions within s 92 - appeal not finally determined, or quashed or set aside conviction, or where a pardon has been given.
Hearsay or Opinion rule do not apply
93 SAVINGS - does nto prevent res judicata or issue estoppel
Res judicata is a defence to a claim in a legal proceeding which, if made out, is a complete bar to the claim
issue estoppel A final judgment by a competent tribunal creates an issue estoppel in that it forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision
Evidence of judgements and convictions
PART 3.5 - EVIDENCE OF JUDGMENTS AND CONVICTIONS
91 Exclusion of evidence of judgments and convictions
92 Exceptions
93 Savings
Evidence of a prior decision of a court is not admissible to prove the fact in issue elsewhere: s. 91 Evidence Act. This does not apply to proving the death, date of death, or execution of a will through a grant of probate (s. 92 Evidence Act), proceedings for defamation: s. 93 Evidence Act.
92 (2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or
(b) that has been quashed or set aside, or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
93 SAVINGS
This Part does not affect the operation of:
(c) the law relating to res judicata or issue estoppel.
(B) Res Judicata
The rule as to res judicata (sometimes called ‘cause of action estoppel’, especially in England) is that, where an action has been brought and judgment has been entered in that action, no other proceedings may be maintained on the same cause of action.1 If the cause of action was held to exist, so that judgment was given upon it, it is said to be merged in the judgment and no longer has an independent existence.2 If it was held not to exist, the unsuccessful plaintiff may no longer assert that it does.3 The notion of res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation.4
Res judicata is a defence to a claim in a legal proceeding which, if made out, is a complete bar to the claim.5 The plaintiff’s claim may be struck out or the action stayed or dismissed on the ground that it discloses no cause of action or that its maintenance is an abuse of process.6 There is no discretion in a court to allow the second action to proceed where the cause of action has merged in the judgment in the prior proceedings.7 For example, where judgment is entered in favour of a creditor for a sum less than that actually owing and the judgment creditor fails to have the judgment set aside or to raise in the subsequent proceedings the circumstances in which the judgment was entered, fresh proceedings to recover the balance will be dismissed as the cause of action will have been extinguished by the first judgment.8
What are the various standards of proof in Criminal and Civil trials…
PART 4.1 - STANDARD OF PROOF
140 Civil proceedings: standard of proof - balance of probabilities - Briginshaw
141 Criminal proceedings: standard of proof
Criminal Case -
prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt
defendant proved if it is satisfied that the case has been proved on the balance of probabilities.
142 ADMISSIBILITY OF EVIDENCE: STANDARD OF PROOF
the court is to find that the facts necessary for deciding: a question whether evidence should be admitted or not admitted, have been proved if it is satisfied that they have been proved on the balance of probabilities.
Presumptions of Competence and Compellability of Witnesses - what are they?
Presumptions - s12: Presumption of competence and compellability
- Except as otherwise provided by Act:
- (a) every person is competent to give evidence; and
- (b) a person competent to give evidence about a fact is compellable to give that evidence.
The crucial question is whether or not the person is capable of understanding that he is under an obligation to give truthful evidence: s. 13(1) Evidence Act.
There is a presumption that a person is competent: s. 13(5) Evidence Act.
The matter should be determined by the judge in the absence of the jury via a Voir Dire: s. 189(4) Evidence Act, Demirok v The Queen (1977) 137 CLR 20.
A person who is found not to be competent to give sworn evidence may give unsworn evidence, if the court has told the person (s. 13(4) and (5)).
If the conditions under s. 13(4) and (5) are not met, unsworn evidence is inadmissible: s. 21 Evidence Act, RJ v Regina [2010] NSWCCA 263, SH v Regina [2012] NSWCCA 79 at para [35], MK v Regina [2014] NSWCCA 274 esp at para [72].
Can a judge comment or give directions on an accused failure to give evidence?
Failure to give evidence - s 20 | [2-1020] Failure of offer explanation
Where the accused has failed to give an explanation in response to the circumstantial case led by the Crown, a comment can be made on the inference that a jury can draw from that failure.
The effect of the comment is that, in the absence of any explanation for the evidence produced by the Crown by way of facts that are peculiarly within the accused’s knowledge, the jury can more safely infer the guilt of the accused. This is usually referred to as a “Weissensteiner direction”. It will be a rare and exceptional case The jury should be informed that is only a comment made by the trial judge and that they are free to disregard it. The comment should be in terms of a failure to explain rather than as a failure to give evidence.
- Weissensteiner v The Queen (1993) 178 CLR 217
- RPS v The Queen (2000) 199 CLR 620
- Azzopardi v The Queen (2001) 205 CLR 50 especially at [64]–[68]
