General Evidence

Question 1

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.

Answer 1

Papakosmos [1999] HCA

Question 2

Which section states that the EA 2008 applies to “proceedings in a Victorian Court”.

Answer 2

s 4 Evidence Act 2008

This Act applies to all proceedings in a Victorian court…

Question 3

Which section of the Evidence Act 2008 (Vic) provides the general rule that all witnesses are competent and compellable?

Answer 3

s 12 Evidence Act 2008

Question 4

Which section of the Victorian Evidence Act provides for cross examination of an “unfavourable witnesses”?

Answer 4

s 38 Evidence Act 2008

Question 5

What is the test and section for relevance under the UEA?

Answer 5

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…’

Question 6

What is the test and section for the hearsay rule under the uniform evidence acts?

Answer 6

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.’

Question 7

If evidence is admissible for a non hearsay purpose, it is admissable for a hearsay purpose.

Answer 7

s 60 Evidence Act 2008

Question 8

What is the section and pre-requisites for the “maker not available” exception to the hearsay rule in civil proceedings?

Answer 8

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.

Question 9

What is the section and “pre requisites” for the “maker available and will be called” exception to the hearsay rule?

Answer 9

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).

Question 10

Which section means that the credibility rule does not apply if it could substantially affect the credibility of a witness in cross examination?

Answer 10

Section 103(1) Evidence Act 2008 (Vic)

Question 11

If you are dealing with an unfavourable witness, what are the four steps required to deal with them?

Answer 11

1. 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).

Question 12

Which section of the UEA provides that a witness that fails to comply with a subpoena can be arrested?

Answer 12

Section 194 Evidence Act 2008 (Vic)

Question 13

Which section provides for the “opinion rule”?

Answer 13

Section 76 UEA

Question 14

Which section allows a person to give an opinion based of their specialised training, study or experience?

Answer 14

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

Question 15

Which section allows a lay opinion to be given when it is necessary for the witnesses’ evidence to be understood?

Answer 15

Section 78 UEA

Question 16

Which section provides that an admission is inadmissable if it is influenced by violent, oppressive, inhuman or degrading conduct (VOID) conduct?

Answer 16

Section 84 UEA

Question 17

Evidence may be so ambigious as to be irrelevant.

Answer 17

Lithgow City Council v Jackson [2011] HCA

Ambulance office - ? Fell 1.5 meters - unable to logically impact probability either way.

Question 18

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.

Answer 18

Blatch v Archer (1774) per Lord Mansfield.

Sheriff - whether arrest of debtor lawful - son not called to give evidence of supervision.

Question 19

Which jurisdictions have not adopted the Uniform Evidence Act?

Answer 19

Western Australia, South Australia, Queensland.

Question 20

Which section of the UEA allows for the exclusion of improperly or illegally obtained evidence?

Answer 20

s 138 Evidence Act 2008 (Vic)

…not to be admitted unless the desirability of admitting the evidence outweighs…

Question 21

Improperly obtained evidence is excluded on the basis of public policy - judicial approval cannot be given to illicit investigative procedures.

Answer 21

Bunning v Cross [1978] HCA

Driver clearly drunk - “preliminary test’ not administered - conviction upheld.

Question 22

At common law, a civil admission could be constituted by conduct.

Answer 22

Thatcher v Charles [1961] HCA

Dangerous riding - struck child - silence when mother confronted.

Question 23

Proof is not required about knowledge that is not reasonably open to question and is common knowledge.

Answer 23

s 144 Evidence Act 2008 (Vic)

Question 25

When assessing probative value, the judge must assume the jury **will accept** the evidence.

Answer 25

*IMM v The Queen* [2016] HCA (4:3) Sexual r'ship _w_ minor - complainant evidence - *'massage'.*

Question 26

Which section allows judges to give warnings about **unreliable evidence**?

Answer 26

**s 165** *Evidence Act 2008 (Vic)* ## Footnote *This section applies to evidence in a civil proceeding that is evidence of a kind that may be unreliable...*

Question 27

**Conduct** can be an admission.

Answer 27

[?]

Question 29

Why can't a witness give evidence or make an admission about a question of law?

Answer 29

***s 12** Evidence Act 2008* - competence - facts only.

Question 30

What is one of the problems in seeking to invoke the "***opinion rule***" for lay evidence?

Answer 30

Statements of fact and opinion **form a continuum**.

Question 31

Evidence is only relevant if it could **logically effect** the liklihood of a fact in issue.

Answer 31

*Smith v The Queen* [2001] HCA police officers - CCTV of a bank robbery - no better placed than jury.

Question 32

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.

Answer 32

*Dasreef Pty Ltd v Hawchar* [2011] HCA chartered chemist - professional engineer - concentration of silica dust.

Question 33

Which section **excludes credibility evidence** in relation to a witness at trial?

Answer 33

**s 102** *Evidence Act 2008*

Question 34

Which section contains a **general discretion** to **limit** the use of evidence?

Answer 34

**s 136** *Evidence Act 2008 (Vic)*

Question 36

Which section states that **tendancy** evidence is inadmissable unless it has **significant probative value**?

Answer 36

**s 97** *Evidence Act 2008 (Vic)*

Question 37

An unexplained failure to call evidence reasonably expected to be called suggests the evidence would not assist.

Answer 37

*Jones v Dunkel* [1959] HCA Truck fatality - circumstantial case - defendant did not give evidence.

Question 38

A witness must be given an opportunity to explain attacks to their evidence.

Answer 38

*Browne v Dunn* [1893] UKHL Allegation of "*sham*" document - signatories not asked - *"Essentially a rule of fairness."*

Question 39

Who said *“Cross examination is the greatest legal engine ever invented for the discovery of truth.”*

Answer 39

**Prof. John Henry Wigmore** (1863 - 1943) Dean of Northwestern University Law School - *Wigmore on Evidence* - one of greatest law books ever written.

Question 41

All **relevant evidence** is admissable unless excluded by the Act.

Answer 41

**s 56** Evidence Act 2008 ## Footnote *"Pivotal provision" - creates code for admissability.*

Question 42

Is the without prejudice privilege **extinguished** on resolution of the dispute?

Answer 42

**Yes**: Common law. **No**: Uniform Evidence Act.

Question 44

The hearsay rule does not apply to **interlocutory proceedings** if source is disclosed.

Answer 44

**s 75** *Evidence Act 2008* ## Footnote *In an interlocutory proceeding, the hearsay rule does not apply ... if ... adduces evidence of its source.*

Question 45

The hearsay rule does not apply the identity of the sender, date and recipient of an electronic communication.

Answer 45

**s 71** *Evidence Act 2008*

Question 46

There is a **presumption of validity** about the date, sender, recipient and content of electronic communications.

Answer 46

**s 161** *Evidence Act 2008* ## Footnote *with the pervasiveness of this form of communication, a requirement that each be proved in a laborious way cannot continue to be warranted’...*

Question 47

A confession obtained in circumstances that make its use **unfair** must be excluded.

Answer 47

**s 90** *Evidence Act 2008*

Question 48

Evidence obtained in **breach of contract** may be evidence obtained improperly for the purposes of **s 138** *Evidence Act 2008*

Answer 48

*Taylor v Burgess* [2002] NSWSC Paternity case - mother - contract not to give evidence regarding partnerity.

Question 49

Which state has enacted a **professional confidential relationship privilege**, subject to an overarching discretion to admit?

Answer 49

**New South Wales.** *Doctor/patient, therepist/client; accountant/client etc.*

Question 50

Which chapter of the *Evidence Act 2008* deals with the admissibility of evidence, essentially as a **code**?

Answer 50

**Chapter 3 (s 55 - s 139).** "*Intended to be an exhaustive statement of the law*" - ALRC.

Question 51

Contrary to the common law, a **view** is to be treated as evidence.

Answer 51

**s 54** *Evidence Act 2008* ## Footnote *...may draw any reasonable inference ...*

Question 52

What is the rule of rule of **collateral finality** in cross examination? Now see **s 106** *Evidence Act 2008 (Vic)*

Answer 52

Answers on **collateral issues** (such as **_credit_)** are **final**. ## Footnote *"Without it, trials could be overwhelmed by peripheral issues remote from the main cause of action".*

Question 53

What is the advantage of allowing arbitrators to **receive hearsay** evidence?

Answer 53

Avoids needless technicalities.