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Evidence > Evidence common law > Flashcards

Evidence common law Flashcards

1
Q

What are substitutes/dispensations of evidence?

A

Formal admissions. Judicial Notice. Presumptions

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2
Q

What is required to adduce contents of documents?

A

must fall within recognised exception to hearsay

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3
Q

What is the status of evidence that goes to an admitted fact?

A

It is irrelevant as admitted, thus inadmissible (R v Longford)

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4
Q

What is required under UCPR to withdraw formal admission

A

r 188: leave of court. Must demo why. Prejudice to other party to be considered inter alia.

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5
Q

What is the consequence of a POG in crim realm?

A

Formal admission to every element of the offence (Meisnner v the Queen)

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6
Q

Can you POG to alleged offence that is not true?

A

Yes (R v Hutchinson).
No misscarriage of justice for court to act on plea even if deft not really guilty (R v Vaughn)

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7
Q

Is a court bound to accept admission?

A

No. If admission untruthful or presents a fiction court can reject (Awap Sgt v CN 2000 Holdings)

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8
Q

What is judicial notice?

A

Facts that are so well known it would be a waste of time to insist on their formal proof (Holland v Jones)

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9
Q

What are some examples of judicial notice?

A

Current minister of defence
cancer is a major health problem
currency inflation
cannabis grass
AIDS is life threatening
QC income would exceed tax free threshold
female legal pracs are disadvantaged
fortunes cannot be predicted by astrology
children are mischievous
normal school hours

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10
Q

Can judicial notice apply to standard work of reference?

A

Yes. dictionaries, maps, reputable scientific texts

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11
Q

How can judicial notice work for geographical matters?

A

They can apply for map (note s 65 EA provides for maps)
Notorious geographical facts for small town may not be notice for a court in a larger centre

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12
Q

Where has judicial notice not been countenanced?

A

Thailand is a haven for paedophiles.
17 yo being unable to prematurely cease intercourse (universal sexual experiences do not exist)

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13
Q

Is judicial notice in the Cth Evi Act?

A

No, per se. However s 190 CEA parties can consent to order to dispense proof.

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14
Q

How does a presumption work?

A

Once circumstances established, court must draw that conclusion unless contrary is shown

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15
Q

What is the standard for a presumption to rebutted on

A

Briginshaw standard.

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16
Q

Can you ask a witness, if other witness has lied in proceeding?

A

No. it calls for an opinion about other witness’s state of mind.

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17
Q

Can you ask a complainant why an accused would be motivated to lie?

A

Generally no, improper to ask, unless raised by accused. Then pros can ascertain the basis of that suggestion.

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18
Q

What is the case and principles of expert evidence to be adduced?

A

Makita v Sprowles:
1. must be agreed/demo’d field of specialised knowledge
2. witness must have specialised training/study/exp in that field
3. Opinion must be wholly or substantially proffered on the witness’s expert knowledge.
4. Opinion based on facts observed by expert must be admissible.
5. Facts on which opinion is based must form a proper foundation of it.
6. Must show demonstration and criteria of the analysis for the conclusion.

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19
Q

Who decides if the supposed expert has sufficient knowledge in their field?

A

Judge does.

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20
Q

What must judge consider when assessing admissibility of expert evidence?

A

Judge must ascertain scope/limits of the expert’s specialised knowledge. Portion of evidence that transcends that can be excluded.

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21
Q

What is important about the nature of giving expert evidence?

A

Must be demonstrative, not simply assertive

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22
Q

What are the questions to be asked if their is a dispute a to witness’s status as an expert?

A

1 - does the asserted field of specialised knowledge exist
and, if yes
2 - is the witness sufficiently versed in the science
Note: highly developed sciences can have subdivisions (neurologist opinion on neurosurgery moot)

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23
Q

What does UCPR say mainly on Experts’ Duties?

A

r 426: Expert has duty to assist court, greater than that of the party paying them.

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24
Q

What does UCPR provide on evidence and multitude of experts?

A

r 429H: Evidence on particular issue should given by single expert, where possible.

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25
Q

How under UCPR is expert appointed?

A

rr 429G- 429J: Expert can be appointed by agreement, or by Court’s initiative

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26
Q

What is disclosure timeframe for expert reports under UCPR?

A

r 429I : as soon as practicable, and:
plaintiff, 90 days after close of pleadings
defendant, 120 days after close of pleadings
otherwise, non-party, 90 days

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27
Q

What UCPR rule governs the requirements of for report under ?

A

r 429H: various requirements etc.

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28
Q

Can fingerprint evidence alone support conviction?

A

Yes. (R v Carr)

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29
Q

Is DNA evidence only for convicting?

A

No, it can convict and exonerate (R v Button)

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30
Q

Can DNA alone support conviction?

A

Yes. (R v Forbes)

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31
Q

What case governs procedural steps for assessing DNA evidence?

A

R v Doheny sets this out - 13 steps - essentially disclose pre-trial, make available the data to def - give the evidence etc.

May need to enumerate all 13 steps

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32
Q

What is an ad hoc expert?

A

Expertise acquired through practice instead of formal accreditation by having skill/knowledge beyond common experience.

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33
Q

What are examples of ad hoc experts?

A

Firefighter on cause and progress of bushfire.
dog trainer propensities of certain dog breeds.
police drug officer on value of drugs.
police drug officer on drug nomenclature.
long time banking officer on banking practices.

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34
Q

How are competing expert opinions weighed?

A

Court to take into account:
- cogency of reasons, consistency, degree of care by expert, willingness to conceded points in cross, manifest independence

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35
Q

What is the consequence of expert evidence bias?

A

Bias evidence need not be rejected, however bias does go to weight

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36
Q

Are expert concessions about being wrong fatal?

A

No. opinion not nullified by that are concessions as to other possibilites.

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37
Q

Can you present common knowledge and facts via expert evidence?

A

No, it is improper to do this to gain forensic advantage.

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38
Q

What are examples of expert evidence not being needed?

A

Witnesses’ accounts of an event will differ slightly; or
A floor might be slippery.

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39
Q

Could cause of scratch marks to a victim be the purview of expert evidence? What case would apply?

A

Yes . Per R v Baydenclay. Scratch marks by fingernails instead of razor permitted as jury were unlikely to examined the matter as closely as experts.

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40
Q

How is expert evidence to be presented?

A

Must be presented demonstratively:
- factual foundation, scientific principles, application of principles to opinion

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41
Q

What is the basis rule for expert evidence?

A

Opinion must be proved by admissible evidence lead before, during or after the expert gives evidence.

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42
Q

What is the consequence of no objection breach of basis rule?

A

Breach of basis rule can still go to question of weight.

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43
Q

Does hearsay rule apply to expert evidence?

A

Expert’s professional literature and corpus of their professional experience is not bound by the hearsay rule. No expert can know everything. “Science is a team effort”) (Davie v Edinburg Corp).

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44
Q

What is an expert swearing the issue and is that necessary?

A

Swearing the issue; expressing the opinion in the very terms of the issue the court has to decide. Not necessary but tactful.

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45
Q

Can non-experts give opinion?

A

Yes, limited to matters of common experience; weather conditions, a person’s apparent age, emotional condition, state of sobriety. Cross exam can test this

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46
Q

How do courts regard ID evidence?

A

fallible. Seductive effect of ID evidence has frequently led to miscarriages of justice, thus needs special rules for directions to juries where ID significant issue. (Domican v The Queen)

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47
Q

What’s the effect of purported ID on a person of different racial group?

A

Diminishes that ID evidence (R v Nguyen [2001])

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48
Q

What is the consequence of inconclusive ID evidence?

A

Other evidence can still support a condition.

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49
Q

What ought a judge tell a jury about ID evidence?

A

Carefully consider the conditions in which it is made. The greater dependence on ID, the stronger the warnings.
Lighting, distance, how long observed, time from sighting to ID to police, previous seeing of deft etc.

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50
Q

What recourse is there for defence where ID evidence weak?

A

There is a discretion to exclude weak evidence of identity (see christie direction for more/s 130 EA)

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51
Q

What are some examples of prejudicial ID lineups?

A

all-male lineup but suggested female was offender.
accused only long-haired Aborigine.
accused only person with striking red hair.
accused only person with goatee beard.

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52
Q

Can a dock ID occur in Court?

A

No. Witness without prior knowledge of accused, this is of little value and liable to cause mistrial.

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53
Q

What is the method to establish deft ID in court?

A

There should be a successful “check-ID” at properly conducted parade or fair selection of photos that presupposes in-court ID.

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54
Q

Is there a consequence if a witness is presented photograph of deft as being a suspect prior to doing a photoboard?

A

Photoboard not admissible (Peterson v The Queen)

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55
Q

Is there a consequence of a deft refusing to do ID parade?

A

No adverse inference to be drawn. If pros however criticised for not doing an ID parade though, then evidence of this relevant to rebut that

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56
Q

What is imperative about photoboard/ID parade persons’ selection?

A

Must be fair and the selection of person must be similar to accused and must be nothing to draw particular attention to the accused.

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57
Q

What’s an Asian example of an ID parade?

A

Vietnamese deft being unsuccessful in claiming that the parade is unfair because all other participants Korean.

58
Q

What ought a judge do where the ID (check-ID) is via photoboard?

A

Give the jury additional directions and cautions; inferior to parade, does not depict manner of movement, static, etc.

59
Q

What are other potentially prejudical issues with photoboard IDing?

A

A witness may assume that there is a photo of the deft on it, and other pressured to purport to ID at least one of the photos (likely closest resemblance to the accused)
Police having the photo, may suggest that the deft has prior criminal convictions
(R v Pitman)

60
Q

Can police inform witness that the suspect is on the photoboard?

A

No, this is improper.

61
Q

Can a witness point out deft to police at scene?

A

Yes. Witness can point out a suspect in a group. Like patrons at a hotel.

62
Q

Can a witness point out deft to police at scene, shortly after event, if deft in police company?

A

Yes, this is not problematic.

63
Q

What is evidence of similarity?

A

It is distinct to ID evidence, and admissible as circumstantial evidence; of the general appearance, or some characteristic or propensity of the accused, is similar to that

64
Q

what are some rules of EIC?

A

Must relate to trial issues, cannot be for credit of wit or other wits.
Accused has no right to tender, and cannot enjoin crown to tender previous self-serving statements.
Cannot ask EIC questions to bolster or accredit own witness (i.e having exceptional powers of memory - though not for experts)
No leading questions on matters in dispute & cannot so obviously indicate the answer desire.
EICQs cannot assume disputed facts?

65
Q

Can you impeach your own wit?

A

No. If honest wit fails to come to proof that is it. However hostile/adverse witnesses are a different story?

66
Q

How do wits testify about matters in EIC generally?

A

From memory, no notes or docs for reference.

67
Q

How does a wit testify about a conversation?

A

Need not be in direct speech (R v Robble)

68
Q

Are statements produced together problematic?

A

Not necessarily.

69
Q

Can, and how does a wit refresh memory?

A

If a witness has exhausted a memory can refer to note if it was made sufficiently contemporaneously (contempor decided by the judge).
Note not to be read into the record.

70
Q

What is the rule in Walker v Walker?

A

If cross examiner calls for document to be read of the other side, document must be tendered as part of their case.

71
Q

Who can be cross examined?

A

Everyone who testifies; orally or by affidavit

72
Q

What is the consequence of not challenging evidence in cross?

A

It is accepted, unless absurd to do so.

73
Q

Is there any recourse for a witness who is too obvious to assist crosser?

A

Can be directed that crosser do EICQs only

74
Q

What are the limitations of cross examination?

A

Not limited to EIC but can explore relevant trial issues or credit. Prior inconsistent statements are stock-in-trade.
Cross is subject to hearsay rule.
Baseless imputations are not on

75
Q

What is the remedy to failure to observe the Browne v Dunn Rule?

A

Court can refuse to admit the contradicting evidence (Harshest sanction).
Court, esp in crim, may allow witness to be recalled to answer to the contradictions.
In crim, jury can be directed to find breach of the rule and if applicable, be directed that they can draw adverse inference if they regard it as recent invention (prosecutor can cross on this)

76
Q

What is the finality rule?

A

An answer to a collateral question (one to credit) cannot be rebutted.

77
Q

What are exceptions to finality rule

A

Reputation as a liar
criminal record
bias (like a child coached to give evidence against an accused and bias is denied)
prior inconsistent statements (as to credit at common law)

78
Q

What are the limits of re-examiniation?

A

Must arise of EIC to repair or improve it after cross.
Cannot supplement EIC.
Cross can open the way for accreditation that could not be raised earlier (like a motive that enhances EIC)
e.g. wit in cross admits to change story and then in re-exam is asked if it was for fear or influence

79
Q

What is the general rule for ascertaining burden of proof?

A

He who asserts must prove.

80
Q

Are there issues with explanations of BRD to juries?

A

They have often lead to miscarriages of justice - there should not be explication of the rule but can be contrast with BOP vs BRD.

Wrong to tell jury whether they accept deft’s version or asked who is to be believed. Not the case that pros should be merely more acceptable.

81
Q

How is circumstantial evidence to be assessed?

A

As a whole, not piece meal

82
Q

What are the two species of circumstantial evidence and how do they work?

A

Strands in a rope (some items may be rejected, with remaining still able to support conviction.

links in a chain (intermediate facts) where each is indispensable

83
Q

What is the standard of proof in civil proceedings? And how is that further qualified?

A

BOP.
However might be better known as reasonable satisfication/Brigginshaw standard: the graver the alleged conduct and it’s consequences, or the the more improbable the event, the greater the onus of proof

84
Q

What happens if the evidence in a civil proceeding is evenly balanced (on BOP basis)

A

Affirmative case may fail

85
Q

What is the standard of proof for imputations of criminality in civil cases?

A

BOP on Brigginshaw standard

86
Q

Who decides is evidence is corroborating evidence?

A

Judge. Then jury directed if accepted, tends to show guilt of the defendant.

87
Q

Does there need to be corroborating evidence in a criminal case?

A

No. s 632 Criminal code. That rule is now abolished

88
Q

Is corroborating evidence by testimony only, or are there other examples?

A

There is no limit, can be:
admissions by words, or conduct (like flight)
guilty denial
attempts to bribe or corrupt a witness
Injuries consistent with assault or distress after incident.

89
Q

What is the rule in Jones v Dunkel

A

Case for a party may be enhanced if the other side fail to call a material witness, that is readily able to be called.

90
Q

Does the rule in Jones v Dunkel only apply to the calling of witnesses or are there other exmamples?

A

No. Failing to put certain material questions to a witness called by a side, can fall foul of the rule.

91
Q

What is the two rationale for the rule in Jones v Dunkel?

A
  1. Unexplained failure to call a material witness allows inference that what that witness would have said would not have assisted the failing part.
  2. More robust, less favoured, court might find more readily that a disputed fact may exist.
92
Q

Where are you safe from offending Jones v Dunkel?

A
  1. Witness would probably be hostile
  2. witness readily available to both parties (can lead to competing inferences)
  3. Party does not know what a witness would said.
  4. Other witnesses say the same thing and would be superfluous to call the witness in question.
93
Q

What are the rules of admissibility?

A

Relevance and admissibility.
Everything relevant is admissible, unless excluded by some other rule.

94
Q

What determines if something is relevant?

A

Must be a sufficient rational connection, direct/indirect between information and a fact in issue.

95
Q

What is res gesta about?

A

The principle of completeness; an incomplete testimonial picture will provide an unintelligible accounts .
It is; facts that inform constituent parts of the transaction.

96
Q

How does res gesta interact with the rule against hearsay?

A

It is an exception to the hearsay rule;
e.g. a bystander calling the defendant his name as he committed the assault was admitted as ID evidence

97
Q

What things affect the scope of res gesta?

A

Can be expended by the offence charges, breadth of the allegation or manner in which a claim, or defence is pleaded.

98
Q

What is circumstantial (or indirect) evidence.

A

Facts proven, from which existence of a fact may be inferred (Festa Case (Festa v The Queen)

99
Q

Give an example common sense as the silent major premise in circumstantial reasoning?

A

silent major premise: a man who vociferously denies murdering his wife, when not accused, has a guilty conscience
Minor premise: The defendant acted exactly like this
Conclusion (tacit syllogism) the defendant murdered his wife.

100
Q

What is the rule, and rationale of, the rule against propensity or character evidence?

A

crim history, and other propensity matters are excluded, but not on the basis of relevance but rather that jury would place too much weight on it and would be prejudicial, so the probative value must be great to adduce it.

101
Q

How is a jury trial of multiple accused to be navigated re the issue of character and propensity?

A

Separate charge directions and warning against disposition reasoning, as jury will be privy to misbehaviour of deft and the company that the keep.

102
Q

How can, and can’t a jury reason, on verdicts for multiple sexual complainant cases?

A

If deft is guilty of one count, they cannot reason that he would be the type of person that committed the rest.

Jury can however reason from the improbability of coincidence that the deft likely committed those acts (collusion excluded)

103
Q

What are general exceptions to the rule against character evidence, and or matters that fall outside the rule.

A
  1. Sometimes character is relevant to facts in issue.
  2. sometimes character is a fact in issue, like admin law for licensing of Prac cert and consideration of ‘fit and proper person’ test
  3. Character is relevant to the assessment of damages in defamation case.
104
Q

Is good character evidence by defence admissible and why might it be led?

A
  1. To prove an accused is innocent;
  2. If testifying, the accused is a person of credit.
105
Q

How does similar occasion evidence relate to the rule against character evidence?

A

It is not an exception, rather falls beyond the scope of the rule.

“Evidence is not to be excluded because it tends to show the accused be of bad disposition, but only if it shows nothing more (Pfennig v The Queen).

106
Q

What are some examples of similar, or other occasion evidence?

A

Motive; can be lead even if other offences revealed, but jury to be directed to not use as propensity evidence.

Significant relationship; (hostility, violent, or sexual attraction) contextualises the relationship, makes it more intelligible, and is incidentally propensity evidence (Roach v The Queen).

Other occasion evidence proving id; rebutting alibi by evidence of another offence committed around the same time and place

other occasion evidence proving a disputed knowledge or ability; like capacity to drive a car, or knowledge needed to produce cannabis, or accused claiming disability at trial but recently seen doing push-ups

107
Q

How would a judge generally navigate the adducing of evidence that reveals previous offending?

A

Direct jury to use it for the purpose for which it is admitted, cannot use it for purposes for which it is inadmissible.

108
Q

In multiple sexual complainant’s case, how can and can’t jury deal with that evidence (relating to character etc)?

A

Cannot reason that because deft is guilty of one count, he is the type of person to have done the other counts. However jury can reason from the improbability of coincidence that the defendant likely committed the acts (putting collusion aside)

109
Q

What is the standard of proof for uncharged acts?

A

BRD note required unless such acts are an indispensable link in the chain of reasoning as to guilty?

110
Q

What is the test for strikingly similar evidence?

A

Distinct similarities in the manner and circumstances in which all such events occurred

111
Q

What are some examples of strikingly similar facts cases?

A

R v Armstrong (Id) 5 burgs committed in the same area over a few months all in similar circumstances with white van

R v McGrane: several separate instances revealed doctor had propensity to use drugs and assault female patients

R v Dupas (no 2) details of subsequent murder were admitted to prove a highly similar mutilation technique.

112
Q

What is the rationale for similar facts evidence on the basis of strikingly similar;

A

ID issue; if proved deft has done very similar things around the same time and place, unlike someone else with the same “trade mark” did it this time (Sutton v The Queen)

Intent issue - deft acted so on every other occasion, no-one could do the same thing so often without knowing the nature of the act.

113
Q

Hoe does pfennig v the Queen categorise evidence that discloses offences other than those charged?

A

Always propensity evidence, either falls into similar fact evidence, relationship evidence or identity evidence.

114
Q

What are the questions to ask when determining if something is strikingly similar?

A

How often the pattern was repeated.
Is it clear the deft was the actor on the other occasions.
How proximate in space and time is the other occasion.
Are there dissimilarities as well as similarities.
Is there a rational hypothesis that goes to innocence?

115
Q

Where does the law sit, and what are the cases about similar fact evidence determination by the Judge?

A

R v O’Keefe - dubious authority -that the judge must ask two questions; is the only reasonable view that the similar facts support inference of guilt and if yes, is the evidence of the whole case reasonably capable of excluding all hypotheses of innocence.

HML v The Queen per Hayne J - most authoritative on admissibility for striking similar evidence. o Not for trial judge to decide whether pros evidence establishes deft’s guilt
o Must be assumed that the similar fact evidence would be accepted as true and prosecution case may be accepted by the jury
o Pfennig does not require judge to conclude the similar fact evidence standing alone, would demonstrate the guilt of the accused

116
Q

Can defence use in criminal, and can similar facts be used in civil cases, and what are some examples?

A

Yes.
Prior misconduct of police officer lead in response to a charge of drink driving.

Dang opp causing death, 139 citizens responded to newspaper advert stating they were confused by same stretch of road.

Murder with argument of self defence, lead that victim killed 3 people 23 years ago and threatened to kill a witness on night of his death; this victim was manifestly more likely to attack people than ordinary community members

117
Q

What is the hearsay rule and why does it exist?

A

A prior, out of court statement, repeated for the purpose of asserting its contents as true, is not permitted.

Based on policy to exclude unreliable evidence.

118
Q

Do out of court statements necessarily offend the rule of hearsay, and if not, what are some examples?

A

Not every repetition of a prior statement is hearsay
It precludes repetition of prior statement as truth of what it asserts but does not preclude repetition of a statement, true or false, if relevant; these prior statements are “original evidence”.

E.gs. Identical false alibis for co-accused demonstrate collusion, and goes to consciousness of guilty;
Threatening statements are evidence of duress;
A greeting may prove that the speaker was aware of the presence of another, to whom a duty of care was owed.
Commands ore request are evidence (A put B in charge of motor vehicle)
Seemingly irrelevant convo between two suspects may demonstrate they knew each other despite claims otherwise (R v Kennedy)
In a tort for wrongful arrest (false imprisonment) a citizen’s report regardless of being true is relevant to the police officer’s state of mind when affecting that arrest
Opinion of retired police officer as to an issue of “reasonable cause” is not admissible (Hrdavec v NSW)
Verbal reactions and exclaimations of patrons were evidence that a publican had served adulterated beer (Manchester Brewery ltd v Coombs)
Telephone calls by defendant were evidence they lured the accused to the locus in quo.

119
Q

What are implied assertions about when it comes to hearsay?

A

Some repeated statements purporting to be OG evidence are actually hearsay

E.gs Phone calls of several unidentified people to defendant asking for drugs lead as circumstantial facts that deft was a druggo however held that this was hearsay (contrary to other similar cases for some reason);
A murder victim’s stated intention to meet the defendant was admissible that the meeting took place;
In same case a child answering phone and saying “it’s daddy!”(the accused) was branded hearsay (Walton v The Queen) HOWEVER
Telephone Exception to hearsay was invented by the High Court in (Pollitt v The Queen)

120
Q

How do statements adduced as “original evidence” interact with the rule against hearsay?

A

No an exception, but rather falls beyond the reach of the rule.

121
Q

What’s the go with hearsay and the res gesta and give us some examples?

A

Utterances part and parcel of event can be an exception. Spontaneity enhances their reliability - provided they are sufficiently contemporaneous with event.

Plaintiff saying “saw little green man” in semi conscious state.

victim addressing accused by 1st name; admitted for ID

122
Q

What’s the go with hearsay insofar as interlocutory proceedings?

A

Admissible, provided it and the source are clearly identified (Dept Comish Tax v Ahern).

123
Q

Is a person’s out of court statement regarding thoughts and feelings admissible, what rule is concerned?

A

Rule against hearsay concerned.

admissible to prove person had those thoughts and feelings.

124
Q

What are some examples of admissible thoughts and feelings previous statements?

A

Pain and suffering for PI claim.

Police officer state of mind when arresting plaintiff in wrongful arrest case.

A intended to meet B (and inferentially did)

Statement that deceased had been asked to draft suicide note, before her untimely death.

125
Q

What is a major exeception to hearsay

A

Prior, adverse to interests statement by party in current litigation (more to come)

126
Q

What can be done by an out of court statement by a dead witness, at common law?

A

At common law, statements against interest, distinct to admissions is admissible as well as dying declarations (for homicide where victim expects death, evidence to assailant or other circumstances).

127
Q

What’s the go with fresh complaint and preliminary complaint?

A

Exceptions to hearsay;

Fresh complainant is at common law, preliminary complaint is under statute.

Both for the purposes of bolstering complainant credit (or diminishing it)

128
Q

What is the go with the rule in Walker v Walker, how it works, its limitations etc?

A

If A calls for document that B has in Court, B complies, B may require A to tender it, contents are then evidence of any relevant fact recorded despite hearsay?

Uncertain whether this rule applies in crim proceedings.
(Stroud v Stroud);

This rule does not apply in cases governed by Cth Evidence Act s 35 EA cth

129
Q

What is the Telephone exception to hearsay?

A

Invented by HCA in Pollit v the Queen; statements made during or immediately after phone call are admissible to identify the other party to it, as exception of hearsay.

130
Q

Does marital privilege still exist?

A

No. s 8(2)(3) EA abolished it with retrospective effect per s 138 EA

131
Q

Can privilege be waived?

A

No, a substantive legal principle, not a mere rule of evidence.

132
Q

What are the types of legal professional privilege?

A

Lawyer-client communications

prevention or termination of privilege

material prepared for litigation

without prejudice negotiations

133
Q

What is important about raising privlege?

A

Cannot just be an assertion of privilege, must prove facts showing the claim is properly made (Hancock v Rinehart)

134
Q

What is the test to determine lawyer-client privilege communications and what case does it come from?

A

Esso Aust Resources case; test - communication between lawyer and client, predominantly for the purpose of legal advice need not be disclosed.

Dominant purpose is prevailing, paramount of most influential purpose at the time the statement/document was made

135
Q

How is purpose, for dominant purpose assessed?

A

Objectively, however parties’ intentions are still relevant?

136
Q

Who bears the onus when it comes to privlege?

A

The party claiming it with focussed and specific evidence required in respect of each communication.

137
Q

What does the scope of lawyer-client privilege extend to?

A

Notes;
Memoranda;
Other documents and copies;
recordings of communications etc

138
Q

What does there need to be in the lawyer-client relationship for privilege to subsist?

A

need not be contract or retainer (i.e. LAQ DL and client) will even extend to clients who refuse to satisfy retainer.

Sufficient that intending client holds reasonable, bona fide belief that there is a lawyer client relationship

139
Q

Can communications between party and third party be privileged?

A

Yes, if the dominant purpose test is satisfied.

140
Q

What is the ambit of confidence, for lawyer-client privilege?

A

Several persons; co-defendants, insurer-insured, trustee-beneificiary share a ambit of confidence; cannot claim privilege against each other while the common interest privilege subsists

141
Q
A

Evidence (4 decks)

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