General Evidence Flashcards
The High Court has cautioned trial judges against using their discretionary powers under Part 3.11 of the Act to re-instate the common law rules of evidence.
Papakosmos [1999] HCA
Which section states that the EA 2008 applies to “proceedings in a Victorian Court”.
s 4 Evidence Act 2008
This Act applies to all proceedings in a Victorian court…
Which section of the Evidence Act 2008 (Vic) provides the general rule that all witnesses are competent and compellable?
s 12 Evidence Act 2008
Which section of the Victorian Evidence Act provides for cross examination of an “unfavourable witnesses”?
s 38 Evidence Act 2008
What is the test and section for relevance under the UEA?
See s 55 Evidence Act 2008.
‘Could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue…’
What is the test and section for the hearsay rule under the uniform evidence acts?
s 59 Evidence Act 2008
‘Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.’
If evidence is admissible for a non hearsay purpose, it is admissable for a hearsay purpose.
s 60 Evidence Act 2008
What is the section and pre-requisites for the “maker not available” exception to the hearsay rule in civil proceedings?
The hearsay rule does not apply in civil proceedings if the maker is not available (s 63) AND: - it is first hand hearsay (s 62); and - Section 67 notice is provided.
What is the section and “pre requisites” for the “maker available and will be called” exception to the hearsay rule?
Hearsay rule does not apply if the maker of the representation is to be called (s 64(3)) AND - it is first hand hearsay (s 62).
Which section means that the credibility rule does not apply if it could substantially affect the credibility of a witness in cross examination?
Section 103(1) Evidence Act 2008 (Vic)
If you are dealing with an unfavourable witness, what are the four steps required to deal with them?
- Examination in chief; 2. If they can’t remember, seek leave to refresh memory with statement: s 32 UEA 3. If they are still obstructive, cross examine under s 38 UEA. 4. If they are still obstructive and recant from earlier statement, tender a copy of statement (s 48, 103(1)). This then becomes weak, unsworn evidence of its truth (s 60).
Which section of the UEA provides that a witness that fails to comply with a subpoena can be arrested?
Section 194 Evidence Act 2008 (Vic)
Which section provides for the “opinion rule”?
Section 76 UEA
Which section allows a person to give an opinion based of their specialised training, study or experience?
Section 79 UEA
“You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.”
― Harlan Ellison (1934 - )
Prolific American writer of short stories, novellas, teleplays, essays, and criticism
Which section allows a lay opinion to be given when it is necessary for the witnesses’ evidence to be understood?
Section 78 UEA
Which section provides that an admission is inadmissable if it is influenced by violent, oppressive, inhuman or degrading conduct (VOID) conduct?
Section 84 UEA
Evidence may be so ambigious as to be irrelevant.
Lithgow City Council v Jackson [2011] HCA
Ambulance office - ? Fell 1.5 meters - unable to logically impact probability either way.
Evidence is to be weighed according to the proof that was within the power of one side to produce and power of the other to contradict.
Blatch v Archer (1774) per Lord Mansfield.
Sheriff - whether arrest of debtor lawful - son not called to give evidence of supervision.
Which jurisdictions have not adopted the Uniform Evidence Act?
Western Australia, South Australia, Queensland.
Which section of the UEA allows for the exclusion of improperly or illegally obtained evidence?
s 138 Evidence Act 2008 (Vic)
…not to be admitted unless the desirability of admitting the evidence outweighs…
Improperly obtained evidence is excluded on the basis of public policy - judicial approval cannot be given to illicit investigative procedures.
Bunning v Cross [1978] HCA
Driver clearly drunk - “preliminary test’ not administered - conviction upheld.
At common law, a civil admission could be constituted by conduct.
Thatcher v Charles [1961] HCA
Dangerous riding - struck child - silence when mother confronted.
Proof is not required about knowledge that is not reasonably open to question and is common knowledge.
s 144 Evidence Act 2008 (Vic)
When assessing probative value, the judge must assume the jury will accept the evidence.
IMM v The Queen [2016] HCA (4:3)
Sexual r’ship w minor - complainant evidence - ‘massage’.
Which section allows judges to give warnings about unreliable evidence?
s 165 Evidence Act 2008 (Vic)
This section applies to evidence in a civil proceeding that is evidence of a kind that may be unreliable…
Conduct can be an admission.
[?]
Why can’t a witness give evidence or make an admission about a question of law?
s 12 Evidence Act 2008 - competence - facts only.
What is one of the problems in seeking to invoke the “opinion rule” for lay evidence?
Statements of fact and opinion form a continuum.
Evidence is only relevant if it could logically effect the liklihood of a fact in issue.
Smith v The Queen [2001] HCA
police officers - CCTV of a bank robbery - no better placed than jury.
Care which must be taken in determining whether a witness, who may be an expert in some areas, possesses specialized knowledge with regard to the relevant issue.
Dasreef Pty Ltd v Hawchar [2011] HCA
chartered chemist - professional engineer - concentration of silica dust.
Which section excludes credibility evidence in relation to a witness at trial?
s 102 Evidence Act 2008
Which section contains a general discretion to limit the use of evidence?
s 136 Evidence Act 2008 (Vic)
Which section states that tendancy evidence is inadmissable unless it has significant probative value?
s 97 Evidence Act 2008 (Vic)
An unexplained failure to call evidence reasonably expected to be called suggests the evidence would not assist.
Jones v Dunkel [1959] HCA
Truck fatality - circumstantial case - defendant did not give evidence.
A witness must be given an opportunity to explain attacks to their evidence.
Browne v Dunn [1893] UKHL
Allegation of “sham” document - signatories not asked - “Essentially a rule of fairness.”
Who said “Cross examination is the greatest legal engine ever invented for the discovery of truth.”
Prof. John Henry Wigmore (1863 - 1943)
Dean of Northwestern University Law School - Wigmore on Evidence - one of greatest law books ever written.
All relevant evidence is admissable unless excluded by the Act.
s 56 Evidence Act 2008
“Pivotal provision” - creates code for admissability.
Is the without prejudice privilege extinguished on resolution of the dispute?
Yes: Common law.
No: Uniform Evidence Act.
The hearsay rule does not apply to interlocutory proceedings if source is disclosed.
s 75 Evidence Act 2008
In an interlocutory proceeding, the hearsay rule does not apply … if … adduces evidence of its source.
The hearsay rule does not apply the identity of the sender, date and recipient of an electronic communication.
s 71 Evidence Act 2008
There is a presumption of validity about the date, sender, recipient and content of electronic communications.
s 161 Evidence Act 2008
with the pervasiveness of this form of communication, a requirement that each be proved in a laborious way cannot continue to be warranted’…
A confession obtained in circumstances that make its use unfair must be excluded.
s 90 Evidence Act 2008
Evidence obtained in breach of contract may be evidence obtained improperly for the purposes of s 138 Evidence Act 2008
Taylor v Burgess [2002] NSWSC
Paternity case - mother - contract not to give evidence regarding partnerity.
Which state has enacted a professional confidential relationship privilege, subject to an overarching discretion to admit?
New South Wales.
Doctor/patient, therepist/client; accountant/client etc.
Which chapter of the Evidence Act 2008 deals with the admissibility of evidence, essentially as a code?
Chapter 3 (s 55 - s 139).
“Intended to be an exhaustive statement of the law” - ALRC.
Contrary to the common law, a view is to be treated as evidence.
s 54 Evidence Act 2008
…may draw any reasonable inference …
What is the rule of rule of collateral finality in cross examination?
Now see s 106 Evidence Act 2008 (Vic)
Answers on collateral issues (such as credit) are final.
“Without it, trials could be overwhelmed by peripheral issues remote from the main cause of action”.
What is the advantage of allowing arbitrators to receive hearsay evidence?
Avoids needless technicalities.
