Evidence Cases Flashcards
R v Kneebone (1999)
Prosecution duty to call a witness
Must be able to:
1. Point to indentifiable factors the witness was not called.
2. Demonstrate basis for unreliability
3. Cannot decide not to call because contradicts case.
BR required prosecution to call witness.
Mahmood
video was admissible because it contained statements that went against the appellant’s interests
Pros should have submitted the complete record, which included both incriminating and exonerating statements.
failure of the prosecution to present all admissible evidence - necessitated a direction
failure to provide a direction = legal error.
Distinction: direction and comment. directions are instructions - jury is required to follow as law. Comments, are not binding instructions and can be ignored by the jury.
Browne v Dunn
Rule of fairness
continuation> S 46 Leave to recall witnesses
Must put the substance of the contradictory evidence to the witness to give them opportunity to contradict it.
Jones v Dunkel (1959)
DIRECTION TO JURY that an adverse inference can be drawn when a party fails to call a witness who could have provided relevant evidence.
Esso
Evidence Act (Cth), sections 118 and 119
Federal Court Rules, order 15 rule 15
discovery and production not covered by EA and FCR:
Held: Discovery and production - Common Law dominant purpose test for privilege (depart from Grant v Downs ‘sole purpose’ test)
Mann v Carnell
S. 122 - LOSS OF CLIENT PRIVILEGE
Issue: Waiver by disclosure to third party
“client who is entitled to the benefit of confidentiality and who may relinquish that entitlement”
Inconsistency between the conduct of the client and the maintenance of that confidnetiality
EXTRA: Legal professional privilege may apply beyond the courtroom, including in discovery and inspection of documents
Stanoevski
1. S 192 , LEAVE, PERMISSION OR DIRECTION
“in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case”.
112 - Staneovski led evidence of good character > 112 was granted to prosecution without reference to 192
Breach of the Act.
Picker
FACTS: impermissible questions > .miscarriage of justice
Prosecutor invited the accused to comment on the complainants motive to lie. Impermissible
Accused counsel did not put certiain things to the complainant in cross > Prosecution inferred this meant the accused must have made it up.
**Palmer v The Queen (1998)
accused required to prove any grounds for imputing the complainants motive to lie
Resulting rule - impermissable to ask accused the complainants motive to lie.
> > the accused belief (as they cannot know what the complainant is thinking) is irrelevant.
> > enlivens the ‘bolster rule’ “evidence is not admissable if it merely bolsters the credibility of a witness.
> > absence of the knowledge of the complainants motive is merely to bolster the credibility of the complainant.
KADIR v THE QUEEN; GRECH v THE QUEEN (2020)
**s 138 **
Discretionary Application: Section 138(1) discretion is individually applied to each unlawfully obtained evidence item.
weight will vary depending on the circumstances and the particular item of evidence
Impropriety Standard: Impropriety is gauged by “minimum standards of acceptable police conduct.”
Public Interest Consideration: weighing the deterrence of unlawful behavior against the need for fair trial evidence.
Causal Link Significance: The strength of the connection between unlawful conduct and evidence is crucial.
Section 138 not limited to criminal cases or law enforcement.
Factors should not be viewed in isolation; they often overlap.
Sio v The Queen (2016)
S 65(2)(d) hearsay when maker available
Representation must be made in circumstances likely to be reliable.
Used Warren v Coombes over House (traditional discertionary approach): binary process.
Either the circumstances make it likely that the representation is reliable, or they do not.
Rejected appeal that the circumstances of the statement were unreliable because:
- lack of rehearsal
- sincerity
- cooperation
- took place within 24 hours.
***TL v The King (2022)
**97(1)(b) tendency and identity
FACTS: Appellant convicted for stepdaughter’s murder, with tendency evidence showing deliberate harm.
APPEAL: RELIED ON HUGHES: TENDENCY EVIDENCE FOR ID PURPOSES WILL ALMOST CERTAINLY DEPEND UPON CLOSE SIMILARITY.
HELD: Appeal dismissed upholding tendency evidence
Clarifying the application of Hughes v The Queen - universal rules should be avoided.
PV Satisfied without close similarity
Smith v Queen
Other’s conclusions don’t affect jury assessment
conclusion based on material available to the jury
no logical basis for changing probability assessment
irrelevant and should not be received
Lee v The Queen
- section 59 - hearsay
- section 60 - admitted for non-hearsay purpose
- sections 81 and 82 - hearsay exception for admissions
hearsay rule applied to both:
- the prior inconsistent statement to police
- witness recounting of what accused said. second-hand
what accused said can not be used as evidence the confession - second hand hearsay
resulting amendendment to EA s 60 (2)- once adduced for non-hearsay purpose (prior inconsistent statement) can be used for hearsay purpose - with or without personal knowledge.
