Evidence

Question 1

SH v R (2012)

Answer 1

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

Question 2

Australian Crime Commission v Stoddart (2011)

Answer 2

No common law privilege against spousal incrimination

Question 3

Jones v Dunkel (1959)

Answer 3

If witness in party’s ‘camp’ not called, inference can be drawn that evidence would not have supported that party

Question 4

Dyers v The Queen (2002)

Answer 4

Jones v Dunkel does not generally apply in criminal law

Question 5

Azzopardi v The Queen (2001)

Answer 5

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

Question 6

Adam v The Queen (2001)

Answer 6

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)

Question 7

Browne v Dunn (1893)

Answer 7

Adverse imputations must be put to other party or witness impugned

Question 8

MWJ v R (2005)

Answer 8

Rule in Browne v Dunn does not apply to defendant in criminal law

Question 9

National Australia Bank v Rusu (1999)

Answer 9

Authenticity of documents material to their admissibility

Subsequently rejected in ACCC v Air New Zealand (No 1) (2012); current status unclear

Question 10

ACCC v Air New Zealand Ltd (No 1) (2012)

Answer 10

Authenticity of documents not material to admissibility

Rejected National Australia Bank v Rusu; current status unclear

Question 11

Evans v The Queen (2007)

Answer 11

s 53 does not apply to in-court demonstrations

In-court demonstration relevant to proof of facts in issue

Question 12

R v Kneebone (1999)

Answer 12

Duties of crown prosecutors to call witnesses

Question 13

Papakosmas v The Queen (1999)

Answer 13

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

Question 14

Smith v The Queen (2001)

Answer 14

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

Question 15

Lithgow City Council v Jackson (2011)

Answer 15

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

Question 16

Lee v The Queen (1998)

Answer 16

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)

Question 17

Sio v The Queen [2016]

Answer 17

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

Question 18

Graham v The Queen (1998)

Answer 18

s 66, EA and prior complaint evidence

Pre-dated enactment of s 66(2A); s 66(2A) has largely overruled Graham

Question 19

Dasreef Pty Ltd v Hawchar (2011)

Answer 19

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”)

Question 20

Honeysett v The Queen (2014)

Answer 20

Expert opinion evidence

Expert anatomist’s opinion not based on specialised knowledge, but merely on subjective impressions from viewing images

Question 21

Tuite v The Queen (2015)

Answer 21

Reliability of evidence not material to admissibility under s 79(1)
Knowledge may be “specialised knowledge” even if novel or controversial

Question 22

Em v The Queen (2007)

Answer 22

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

Question 23

IMM v The Queen (2016)

Answer 23

Reliability and credibility not material to probative value under ss 97, 137 (affirming Shamouil, rejecting Dupas)

Question 24

Hughes v The Queen (2017)

Answer 24

“Significant probative value” of tendency evidence

Similarity goes to probative value, not admissibility: ss 97, 101

Question 25

R v Ellis (2003)

Answer 25

Pfennig (propensity evidence inadmissible if rational view of evidence consistent with innocence) does not apply to Evidence Act ss 97-98 or 101

Question 26

Stanoevski v The Queen (2001)

Answer 26

s 192(2) matters must be taken into account by court in granting leave or giving directions

Question 27

Esso Australia Resources Ltd v Commissioner of Taxation (1999)

Answer 27

‘Dominant purpose’ test adopted as test for privilege at common law

Question 28

Mann v Carnell (1999)

Answer 28

Test for waiver of privilege: is conduct inconsistent with continued maintenance of privilege?

Question 29

Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing (2013)

Answer 29

Mann v Carnell applies to interpretation of s 122

Question 30

Kaye v Woods (No 2) (2016)

Answer 30

Privilege waived in respect of documents through solicitor misconduct (as actions sufficient to prompt civil penalty)

Question 31

R v Shamouil (2006)

Answer 31

Reliability and credibility not relevant to assessment of probative value under s 137
Affirmed in IMM v The Queen

Question 32

R v Sood (2007)

Answer 32

Reliability and credibility not relevant to probative value
Competing inferences from evidence not relevant to probative value
Affirmed in IMM v The Queen

Question 33

Jones v The Queen (2014)

Answer 33

Hoch (tendency evidence should be excluded if reasonably capable of explanation on basis of concoction) does not apply to EA

Question 34

Qantas Airways Ltd v Gama (2008)

Answer 34

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