Evidence cases Flashcards
SH v R
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
Browne v Dunne
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.
ACCC v Air NZ
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
Gregg v R
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
Smith v The Queen
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
Lee v The Queen
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.
Esso Australia v Fed Commissioner of Taxation
Test for legal professional privilege - dominant purpose test
Court has power to examine document in determining privilege claim
Mann v Carnell
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
Stanoevski v The Queen
Any matters which require leave of the court (e.g. credibility/character), the Judge must consider all of the elements of s 192
Dyers v The Queen
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
Dasreef v Hawchar
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.
Honeysett v The Queen
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.
IMM v The Queen
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
Hughes v The Queen
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
McPhillamy v The Queen
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
Eric Russell Picker v R
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
Palmer v The Queen
[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
Grech v R, Kadir v R
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
Sio v The Queen
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
R v Belghar
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
R v Simmons, R v Moore
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
McLean v The Commonwealth
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
