Evidence cases

Question 1

SH v R

Answer 1

Child under 10 gave unsworn evidence as were not competent

Judge failed to direct witness about all of the factors sets out in section 13(5) - permissible to ask these as questions

As not give full direction, trial not conducted according to law, conviction set aside

Question 2

Browne v Dunne

Answer 2

If a witness gives evidence that is inconsistent with what the opposing party wants to lead in evidence, the opposing party should raise the contention with that witness during cross-examination.

A party should not put forward a case without first giving opposing witnesses the opportunity of responding to it.

Question 3

ACCC v Air NZ

Answer 3

Authenticity is not a ground for admissibility - relevance is

In deciding relevance, court is authorised to draw inferences as to authenticity are available from the document itself

Question 4

Gregg v R

Answer 4

No reason in principle that to the extent necessary, authenticity of a document cannot be determined from the terms of the document itself

cf s 183 EA

Question 5

Smith v The Queen

Answer 5

Identification evidence not relevant if it is a bare assertion of recognition of the accused (as opposed to recognised them at the scene of crime

If evidence is not relevant it is not admissible

Logical connection between evidence and facts in issue

Police officer’s identification evidence - compared accused to photos - no specialised knowledge led to their opinion, nothing the jury could not have arrived at themselves

Question 6

Lee v The Queen

Answer 6

Representation applies to statements and to conduct

Evidence of a prior inconsistent statement can be admitted and therefore exception to hearsay rule - since it was used for another purpose, then s60 hearsay exception applies.

Question 7

Esso Australia v Fed Commissioner of Taxation

Answer 7

Test for legal professional privilege - dominant purpose test

Court has power to examine document in determining privilege claim

Question 8

Mann v Carnell

Answer 8

Assessment of whether party waived privilege is determined by objective assessment of whether conduct inconsistent with maintenance of claim for confidentiality

In circumstances where documents were shared with a MP on the basis of confidentiality, privilege not waived

Sending open correspondence to the other side is inconsistent with the maintenance of privilege

Question 9

Stanoevski v The Queen

Answer 9

Any matters which require leave of the court (e.g. credibility/character), the Judge must consider all of the elements of s 192

Question 10

Dyers v The Queen

Answer 10

Judge should generally not direct jury in a criminal trial that the accused would be expected to give evidence

Jones v Dunkel inference does not ordinarily apply to a criminal trial

If Judge plans to comment, should discuss with counsel in absence of jury

Jury should not speculate on evidence that might have been given if witness called - should not fill gaps

Question 11

Dasreef v Hawchar

Answer 11

Opinion evidence should not be admitted unless the factual basis upon which opinion is based is established - must be connected with the specialised knowledge, training or experience

Need to consider why evidence is relevant. Identify the fact in issue that party tendering the evidence asserts the opinion proves or assists in proving.

Question 12

Honeysett v The Queen

Answer 12

Opinion evidence - must be knowledge gained from training, study or experience - facts, truths, principles

Needs to be differentiated from opinion based on common experience

Opinion of an expert in anatomy that an offender and D both had certain anatomical characteristics was not based on his knowledge of anatomy but his subjective impression of what he saw when he looked at the images.

Question 13

IMM v The Queen

Answer 13

Probative value - extent to which the jury could rationally infer from the evidence that a fact is in issue is more or less probable

Must be influential in context of fact finding

If evidence is not reliable or credible is unlikely to be relevant in the first place

Question 14

Hughes v The Queen

Answer 14

Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent

Consider extent to which the evidence supports the tendency AND extent to which the tendency makes it more likely the facts making up the charged offence

Except in cases of CSA, a tendency to commit crimes of the type with which a defendant is charged will not be itself be of significant probative value - proves not more than a disposition to commit crimes of that type

Must be some feature of the offending that links the evidence together . Where evidence adduced to prove identity of offender for known offence, probative value of tendency evidence will depend upon close similarity between conduct evidencing tendency and the offence

Question 15

McPhillamy v The Queen

Answer 15

Showing only a disposition to commit crimes of the kind in question will not sufficient for tendency evidence to have significant probative value (except in CSA)

Assessment of strength of tendency evidence will turn on factors such as time gap or gaps between the evidence

Question 16

Eric Russell Picker v R

Answer 16

Cross examination directed to driving the accused to say that the complainant evidence is made up or fabricated is impermissible

Assessment of credibility is role of jury

Question 17

Palmer v The Queen

Answer 17

[sexual assault by process server]

Cross examination that is intended to show that accused cannot prove a motive for complainant to lie is impermissible

A complainants account gains no additional credibility from the absence of evidence of motive

An accused is not obliged to prove a motive for the making of false accusations by complainant

Question 18

Grech v R, Kadir v R

Answer 18

Improperly obtained evidence - not confined to conduct by police

Evidence can be admitted if balance of competing public interests to have all relevant evidence admitted vs not encouraging illegal behaviour

Standard of acceptable conduct of private individuals is less clear - police are held to minimum standards of acceptable police conduct (Ridgeway)

Demonstration of difficulty of obtaining evidence properly did not weigh in favour in circumstances where it was speculation, no evidence of steps taken to try and obtain evidence otherwise

Fruits of poison tree is not part of Australian law

Question 19

Sio v The Queen

Answer 19

In determining whether s65 hearsay exception applies - previous representation made by witness not available (ie a defendant) - intended to relax hearsay rule in relation to facts asserted by person with personal knowledge of that fact

Need to identify the particular representation to be adduced to prove a fact in issue - cannot make an overall determination of general reliability of statements - compendious approach not permissible

Evidence by a co-accused against their co-defendant has long been recognised as less than inherently reliable because of risk of self-serving fabrication

Question 20

R v Belghar

Answer 20

If want to have jury dispensed with, not enough to point to general deficiencies in juries - necessary to show grounds particular to case at hand

No presumption in favour of jury trial which must be rebutted before order for judge alone made, BUT absent an application by accused default position is jury trial

Even if risk of prejudice amongst jurors, should first consider of this can be remedied or neutralised ie by a direction

Not enough to argue you want reasons for decision in having judge alone

Complex evidence may be a sufficient reason for judge alone

Question 21

R v Simmons, R v Moore

Answer 21

If Crown does not consent to a Judge only trial then it is necessary to determine whether judge alone trial is in the interests of justice

Should be considered from both parties point of view without any reference to the identity of the trial judge

Leave will generally not be granted if application is not made until after the date the matter is set down for trial

Generally juries are viewed as capable of obeying directions as to pre-trial publicity and prejudicial evidence

Question 22

McLean v The Commonwealth

Answer 22

A liberal interpretation should be given to the meaning of re-examination - not limited to just oral evidence - includes evidence of documents that came to the witnesses attention at a time and permit the tender of those documents