Evidence principles Flashcards
What are the sections and cases under which a breach of the rule in Browne v Dunn might be cured?
How might such a breach be cured?
s 46 EA
ss 11 and 26 EA.
Cases: Khamis v The Queen; MWJ v The Queen.
Options for curing breach (as outlined in Khamis) are:
(1) Leave to recall witness per s 46 EA;
(2) Leave to party to re-open case and lead further evidence per ss 11 and 26 or common law;
(3) Cross-examine the party in breach;
(4) Limit or exclude the evidence adduced in breach under s 135 - 137 EA (excluding is considered last resort though);
(5) Direction to the jury;
(6) Drawing an adverse inference from the failure to cross-examine; and
(7) Taking account of the breach.
Relevant case for section 50, proof of complex or voluminous documents?
Case name: In the matter of Idylic Solutions.
ASIC prosecution where it wanted to adduce summary evidence to demonstrate a ponzi scheme.
What are the key cases on views, demonstrations, inspections under s 53?
R v Milat: Spookiness of the site lead to unfairness to the defedant.
R v Evans (accused robber made to dress in overalls and balaclava): ss 53 and 54 do not apply to in-court demonstrations.
What sections of the EA are relevant to a question about authenticity of a document?
s 55 - relevant
s 48 - mode of tendering contents of document, but leaves questions of authenticity untouched;
s 51 - original document rule abolished;
s 58 - Court may inspect any document or thing and draw reasonable inferences about its relevance.
s 142 - Standard of proof for admissibility is on balance of probabilities;
s 183 - Court may examine a document or thing and draw reasonable inferences from that examination;
ss 146 - 163: Facilitation of proof.
What are the notice requirements under s 67 EA?
What rules, regulations and caselaw applies to set the relevant period?
Section 67 requires that reasonable notice is given if relying on certain exceptions.
The required notice period is as follows:
- 21 days for civil proceedings as per r 31.5 UCPR;
- 21 days for criminal proceedings in the District Court as District Court rule 10C states that s 31.5 applies to criminal proceedings; and
- A reasonable period as outlined in the common law cases of:
(a) Puchalski v The Queen: 5 minutes’ notice would not ordinarily be reasonable but was OK here because the failure to call didn’t require the defendant to change their defence in response; and
(b) Singh v Newridge Property Group: Notice on the last working day before hearing was not reasonable because the plaintiff had written to the defendants more than 2 years earlier saying that objection would be taken to the evidence.
Evidence Regulations, rule 4 prescribes the requirements of the notice. The notice must identify the substance of the evidence on which the party intends to rely.
For the purposes of the definition of a witness that is “not available”, what will constitute “taking all reasonable steps to compel the person to give evidence without success”?
Use case examples.
As per Sio v The Queen:
- If you subpoena the person and get them into the box to give evidence and threaten them with contempt and they still refuse to give evidence, will be deemed unavailable;
As per John Deere v Caterpillar, court said for expert witness to be unavailable, the party should have at least:
(1) Subpoenaed him;
(2) Contacted the expert and offered to pay travel expenses and professional fees because it’s not the expert’s job to start those negotiations;
(3) Make multiple attempts to contact the witness via different means if any issues.
If the attempts that the subpoenaing party has made to have the witness deemed not available are insufficient, the witness will be deemed available.
What are the relevant cases in relation to s 84 EA?
Habib v Nationwide News:
- Court to determine question of whether admission was influenced by violence on the basis of balance of probabilities.
- May conduct voire dire to determine question; and
- Not a discretion. If admission influenced by violence etc, must be excluded by the Court.
R v Zhang:
- The oppressive conduct that breaches s 84 EA does not have to be the sole reason for the admission, for the admission to be excluded.
- If the oppressive conduct is one of multiple factors influencing the admission, the admission will be excluded.
According to the evidence regulations, what must a Tendency or Coincidence notice include?
The substance of the evidence and any relevant particulars.
What is the period of notice for tendency evidence?
In civil proceedings, it is 21 days as per rule 31.5 UCPR.
District Court Rule 10C extends the operation of r 31.5 UCPR to criminal proceedings, but that will only be in the District Court.
For criminal proceedings in the Supreme or Local Courts, reasonable notice is determined by reference to the common law where:
(1) 5 minutes is ordinarily not sufficient notice (Puchalski v The Queen) unless the opponent would not have altered their approach and therefore there is no prejudice; and
(2) The last business day before the hearing was insufficient notice when the opponent had given notice well before that it intended to object to the adducing of the subject evidence: Singh v Newridge Property Group.
However, the Court can dispense with notice requirements under s 100 EA.
What is the difference between tendency evidence and coincidence evidence?
Tendency evidence seeks to establish a propensity for a person to act or think in a certain way by linking separate actions or events by their similarities or repeated occurrences.
Coincidence tends to establish the likelihood that two distinct events are connected by establishing their how unlikely it is that they would have both occurred in unrelated circumstances.
With coincidence reasoning, the improbability of the coincidence makes it more probably that the accounts given of respective events / circumstances are true: Luke Page (a pseudonym) v The Queen.
What is IMM authority for?
Can the circumstances of a witness’ evidence ever diminish the reliability or credibility of the evidence when assessing probative value?
IMM is authority for the proposition that when assessing the potential probative value of evidence, the court is to assume that the evidence is reliable and credible.
Yes. There are circumstances where, even taken at its highest, the evidence cannot be considered that reliable or credible. Example used by Heydon J was “an eyewitness identification of a person that the witness has not met before, at night, through a window” which would be less reliable than an eyewitness identification of someone the witness knows well and saw during the day.
Also, the witness is assumed to be reliable and credible when assessing probative value unless no jury would be able to rationally accept the evidence.
