Evidence Common Law

Question 1

Em v R

Answer 1

Confessions or admission given against ones own interest and of their own volition is admissible

Question 2

R v Lee

Answer 2

Discretion to reject admission or confessions where it is based on an inducement or threat

Question 3

Bunnings v Cross

Answer 3

Improperly or illegally obtained evidence does not inherently render it inadmissible; however, it confers upon a judge a discretion to reject it.

Question 4

R v Ireland

Answer 4

When a party attempts to admit evidence that is unlawful or unfair, the judge has a discretion to reject the evidence

Question 5

Christie v R

Answer 5

Discretion to exclude evidence where prejudicial effect outweighs probative value

Question 6

McKinney v The Queen

Answer 6

Warning to the jury that they should carefully consider their verdict where the majority of the evidence is based on an admission or confession and the content or circumstances around which it was made is disputed

Question 7

Longman v R

Answer 7

Warning to the jury where there is a delay in prosecution and the defendant has suffered a forensic disadvantage

Question 8

Domican v R

Answer 8

Warning to the jury where the significant part of proving guilt is based on identification evidence. Requires the judge to draw the jury to the strengths and weaknesses of the evidence.

Question 9

Alexander v R

Answer 9

Discretion to exclude out of court idenfitication where prejudical effect outways probative value

Question 10

Alexander v R

Answer 10

Discretion to exclude out of court idenfitication where prejudical effect outways probative value

Question 11

Alexander v R

Answer 11

Discretion to exclude out of court idenfitication where prejudical effect outways probative value

Question 12

Weal v Bottom

Answer 12

Where a witness may be an expert based on experience. - eg the witness had driven such vehilces for 30 years, was considered an expert through practicable experience.

Question 13

Makita V Sprowles

Answer 13

Basis Rule - The admissibility of expert opinion evidence depends on proof of the factual basis of the opinion

Question 14

The State of Western Australia v Montani

Answer 14

Dying declaration - Where the maker of a statement is deceased for the statement to be admissible there must be a relationship between the cause of death and there must be a hopeless expectation of death

Question 15

Higham v Ridgway

Answer 15

A prior out of court statement made against their financial or pecuniary interest is admissible because a person would not make a statement against their interest if it was not true.

Question 16

Perry v R

Answer 16

Hearsay exception about a contemporaneous statement about their health. Wife tried to poison the husband. Police allowed to introduce evidence of statements the husband made to his doctor about the symptoms he was experiencing.

Question 17

Pallante v Stadiums Pty Ltd

Answer 17

Statement made in previous proceedings are admissible in later proceedings relating to substantially similar issues if the witness is unavailable; however, the statement must have been subject to cross examination.

Question 18

Holloway v McFeeters

Answer 18

Admission may be implied by conduct. E.g a driver failed to stop after the accident jury entitled to consider the driver’s conduct as an implied admission

Question 19

Ratten v R

Answer 19

R charge with shooting wife, R claim accidental discharge, police sought to introduce evidence that wife called police asking for help prior to being shot. Held contemporaneous statement as words were being forced from her mouth by R’s actions.

Question 20

Teper v R

Answer 20

Words sought to be proved should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances.

1. It is not the best evidence;
2. It is not delivered on oath;
3. The truthfulness and accuracy of the maker of the relevant statement cannot be tested by cross-examination (see also Wigmore);
4. There is an absence of the demeanour of the maker of the statement;
5. Hearsay statements of third persons are easily fabricated, and even when fabricated, difficult to disprove; and
6. Other considerations, including the potential increase in length and cost of proceedings.

Question 21

Subramanium v Public Prosecutor

Answer 21

Evidence may be admissible as original evidence but cannot go towards proving the fact. eg state of mind that person believed threat he was going to be killed.

Question 22

R v Rowton

Answer 22

Character evidence - the witness’s evidnce must be based on his own personal knowledge of the accused’s general reputation in the relevant community and he must share the community’s view

Question 23

Butera v DPP

Answer 23

Tape Recordings - Best Evidence Rule
It is not the tape but the sound/video produced when playing the tape is the evidence. Case determined that best evidence rule not applicable if copy of tape is made and provenance proved.

Question 24

R v Chin

Answer 24

Case Splitting - the reopening of the prosecutions case after the defence has closed its case is allowable; however, the discretion should be excercised in favour of prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not be able to split its case.

Question 25

Mooney v James

Answer 25

Duty of the judge to regulate and control proceedings. Court therefore has discretion to allow or restrict leading questions.

Question 26

Piddington v Bennett & Wood

Answer 26

Finality Rule - where evidence given by a witness as to a collateral fact should be treated as final

Question 27

R v Umanski

Answer 27

A witness may be hostile where a suggestion of bias, interest or corruption on the part of a witness is denied by that witness, independent evidence may be led to establish such bias, interest or corruption. (also establishes own witness is hositle)

Question 28

McLellan v Bowyer

Answer 28

When deciding to treat a witness as hostile the court may take into account the witness’s demeanour, prior inconsistent statement, conduct in the witness box, answer to non leading questions and choice of language

Question 29

R v Hayden & Slattery

Answer 29

Adverse means unwilling if called by a party who cannot ask him leading questions to tell the truth and the whole truth in answer to non leading questions - to tell the truth in the advancement of justice.

Question 30

Browne & Dunn

Answer 30

Must give witness the opportunity to comment on any issue in their testimony that will be contradicted with other evidence or criticised in closing address.

Question 31

Dyers v R

Answer 31

If a witness is not called, cannot speculate about what that witness would have said

Question 32

Jones and Dunkle

Answer 32

Where a party fails to lead evidence and this failure is unexplained and inference may be drawn that the unled evidence would not have assisted the party.

Question 33

Briginshaw v Briginshaw

Answer 33

The standard of proof is informed by the seriousness of an allegation, the inherent unlikelihood of an occurrence or the gravity of the consequences flowing from a particular finding

Question 34

Davies v Taylor

Answer 34

Balance of probabilities being odds of at least 51 to 49

Question 35

Woolmington v DPP

Answer 35

Presumption of innocence and the fact that the prosecution must prove its case beyond a reasonable doubt

Question 36

Weissensteiner v The Queen

Answer 36

Accused went out on a boat with a couple. returned alone. gave conflicting explanations to police and then refused to give evidence at trial. Held that because the case was circumstantial and the accused was the only one who could give evidence about what happened. it was open for a direction to be given to the jury that they could more safely draw from the proven facts when an accused person elects not to give evidene of relevant facts which it can ealisy be percieved must be within his knowledge.

Question 37

Smith v R

Answer 37

Relevance test requires no more than that the evidence if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existience of a fact in issue in the proceedings

Question 38

R v Stephenson

Answer 38

If evidence is only marginally relevant it may be excluded on the basis that it could mislead or confuse the witness or the jury

Question 39

IMM v R

Answer 39

Evidence must first be capable of being reliable and credible before it can be seen to have any probaitive value

Question 40

R v Van Beelan

Answer 40

The document must be needed to refresh the witness’s memory;

The document must be an original or can be proven to be an accurate copy of the original;

The document must have been written or verified by a witness when the incident was fresh in their memory; and

The witness should be able to verify that document is accurate.

Question 41

Tripodi v the Queen

Answer 41

Once there is reasonable evidence from which an agreement can be inferred, the acts and declarations of the participants in furtherance of the agreement may be used to prove not only the existence of the conspiracy but also the defendant’s participation in it.

Question 42

Pfennig v The Queen

Answer 42

There must be no other reasonable view of the evidence other than as supporting an inference that the accused is guilty of the offence charged.

Question 43

HML v The Queen

Answer 43

Information may be relevant and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.

Question 44

Walton v The Queen

Answer 44

Out of court statement admissible to show state of mind if state of mind relevant to fact in issue.

Question 45

Fragomeli v The Queen

Answer 45

Out of court statment may be admitted becuase of their spontiantiy and intrinsic reliability

Question 46

R v Andrews

Answer 46

“Victim identified his attached when police arrived saying ““the bitch just stabbed me”” statement must be made under high pressure circumstances, immediacy and urgency suggests no possibility of any concoction or distortion”

Question 47

R v Duong

Answer 47

evidence which is an instinctive reaction to that event such that no real opportunity for reasoned reflection ever transpired

Question 48

Myers v DPP

Answer 48

books of accounts kept according to an established system in organised business are receivable in evidence as proof, not of the occurrence of some particular fact recorded or indicated by a specific entry or narration, but of the financial progress or result of business operations conducted on a large scale.

Question 49

R v Connolly

Answer 49

The rule against prior consistent statements applies; a witness may not lift himself by his own bootstraps to enhance his credit. If there is to be analysis and depth, it should only be in response to cross-examination

Question 50

Nominal Defendant v Clements

Answer 50

Admissibility of prior statements where clear allegation of fabrication made in cross examination. Statement must be made soon after event

Question 51

Walker & Walker

Answer 51

Where a statement is used to refresh memory the other party may call for the statement and cross examine the witness on the statement without admitting the statement into evidence.

Question 52

Attwood v The Queen

Answer 52

an accused may put their character into issue and may call evidence of their good character to disprove guilt.

Question 54

HML v The Queen

Answer 54

Information may be relevant and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.