memory sections

Question 1

11. general powers

Answer 1

The power of the court to control the conduct of proceedings is not affected by the Act

Question 2

26. court’s control over questioning

Answer 2

court can control the way witnesses are questioned; the production of documents; the order parties may question witnesses and the presence of any witness

Question 3

8. operation of other act

Answer 3

the evidence act does not affect the operation of any other act

Question 4

61. exception - hearsay rule dependant on competency

Answer 4

rebuttable presumption that when a previous representation is made, the person who made it was competent to give evidence about the asserted fact.

Question 5

62. restriction to first hand hearsay

Answer 5

the division is restricted to what a person heard, saw or otherwise perceived, not a previous representation by another person about what they heard, saw or otherwise perceived (exceptions…).

Question 6

66A. contemporaneous statements about health

Answer 6

hearsay does not apply to a previous representation ‘made by a person’ if the previous representation was about ‘the persons’ health, feelings, sensations, intention, knowledge or state of mind.

Question 7

88. objections to tender of hearsay if maker available (civil)

Answer 7

If a party advises they do not intend to call a witness, you have 21 days to object to the tender of the evidence. Objection is by notice which sets out the grounds. Costs implications if objection is unreasonable.

Question 8

71. exception, electronic communication

Answer 8

hearsay rule does not apply to a representation in a document if the representation is about the identity of the person by whom it was sent; the date it was sent; or the destination or identity of the person it was sent to.

Question 9

70. tags, labels, writing

Answer 9

hearsay does not apply if it’s reasonably supposed the tag or label was attached in the course of business

Question 10

77. relevant otherwise than as an opinion

Answer 10

once an opinion is admitted it can be used as evidence to prove facts other than the fact about which the opinion was expressed.

Question 11

79(2)(a). opinions based on specialised knowledge

Answer 11

includes specialised knowledge about the impact of sexual abuse on children and their development following abuse.

Question 12

83. exclusion of admissions against third parties

Answer 12

the hearsay and opinion rules apply to evidence of an admission against a third party unless the third party gives consent for the admission to be used against them and consent must be given to the whole of the evidence

Question 13

85(1)(b). reliability of admissions against defendants

Answer 13

as a result of an act of a person who the defendant reasonably believes is capable of influencing a decision as to whether prosecution against the defendant should be brought

Question 14

88. proof of admissions

Answer 14

the standard of proof is - if the court finds that it is reasonably open to find the admission was made.

Question 15

s 281 (CrimPA)

Answer 15

Applies in respect of admissions for serious indictable offences that can be dealt with summarily and without the consent of the accused

Question 16

s 20. comment on a failure to give evidence

Answer 16

a judge may comment on a failure to give evidence but the comment must not suggest that the failure to give evidence means that the defendant is guilty UNLESS the comment is made by another defendant in the proceeding

Question 17

91. exclusion of evidence of judgments and convictions

Answer 17

a finding of fact in another proceeding cannot be used to prove ‘the existence of a fact’ (in the current proceeding) that was in issue in that proceeding.

Question 18

95. use of evidence for other purposes

Answer 18

tendency does not have a dual purpose

Question 19

97A. tendency involving child sexual offences

Answer 19

it is presumed that tendency involving sexual interest a defendant had in children or evidence about a defendant acting on a sexual interest in children has significant probative value unless there are ‘sufficient grounds’.

Question 20

100. notice requirements

Answer 20

the court may direct that notice be dispensed with however the direction is subject to conditions as the court thinks fit.

Question 21

108C. exception - specialised knowledge

Answer 21

Expert opinion is an exception to the credibility rule.

Question 22

111. evidence about character of co-accused

Answer 22

the hearsay and tendency rules do not apply to evidence of a defendants character if opinion evidence is given by another defendant and that defendant has expert knowledge capable of supporting that opinion.

Question 23

114(6) exclusion of visual ID evidence

Answer 23

the court is not to take into account the availability of pictures or photographs that could be used in making a an ID when determining whether it would have been reasonable to have held an ID parade.

Question 24

126. loss of privilege - related communications

Answer 24

privilege can be waived if it’s reasonably necessary to utilise a document to understand another document that has already been admitted.

Question 25

difference in s126B of the EA and 296 of the Crim PA.

Answer 25

EA is in respect of protected confidences broadly while the CPA is with respect to sexual offences.

Question 26

126F. application of division

Answer 26

if the protected confidence falls within the definition of the CrimPA, then 126F(3) says that the DIV 1A of Part 3.10 of the EA does not apply.

Question 27

128A, privilege - exception, self incrimination

Answer 27

if you object to complying with a disclosure requirement you have to prepare an affidavit which contains the info you object to disclosing and provide it to the court in a sealed envelope. You also need to file and serve an affidavit to each other party setting out your objection. Sealed envelope cannot be opened unless directed by the court. s 87 of the CivilPA

Question 28

165A. warnings in relation to children’s evidence

Answer 28

A judge cannot warn a jury that children as a class are unreliable, their evidence is less credible. However, if a party so requests, a judge can inform the jury that a child may be unreliable and the reasons why the child may be unreliable.

Question 29

s 191. agreements as to facts

Answer 29

must be stated in writing and signed by lawyers for each party.

Question 30

183. Inferences

Answer 30

If a question arises about the application of a provision in relation to a document the court may examine the document and draw any reasonable inference from it.

Question 31

s 188. Impounding documents

Answer 31

the court may direct that any document produced before the court be impounded in the court’s custody.

Question 32

171. persons that can give evidence

Answer 32

evidence can be given in respect of facts that relate to documents or hearsay exceptions if the person had responsibility in relation to the making or keeping of a document either before or after.

Question 33

172.based on knowledge belief or information

Answer 33

evidence may be based on the knowledge or belief of the person who gives it so long as they state the source.

Question 34

173. notification

Answer 34

affidavits must be served on each other party a reasonable time before a hearing.

Question 35

174. evidence of foreign law

Answer 35

evidence of foreign law may be adduced.

Question 36

175. evidence of law reports of foreign countries

Answer 36

can be adduced by producing a book or report

Question 37

176. questions about foreign law to be decided by a judge

Answer 37

questions decided by a judge alone.

Question 38

177. expert certificates

Answer 38

expert opinion may be adduced by an expert certificate.. It’s not admissible unless the other party so requires the expert to give evidence. Costs may be ordered if it considers the expert was called without reasonable cause.

Question 39

178. convictions, acquittals.

Answer 39

evidence of a conviction or acquittal may be given by a certificate signed by a judge.

Question 40

192A. advance ruling

Answer 40

if a question arises about admissibility of evidence or the operation of an act the court may make a finding before the evidence is adduced.

Question 41

193. Additional powers

Answer 41

the court’s powers extend to enabling discovery and disclosure of documents.

Question 42

194. Prohibited questions

Answer 42

prohibited questions are not to be published unless the court has given permission.

Question 43

187. privilege against self incrimination against bodies corporate

Answer 43

a body corporate is not entitled to refuse to comply with a requirement on the ground that answering a question may make a body corporate liable to a penalty.

Question 44

126E. ancillary orders

Answer 44

in matters relating to confidential professional communications, the court may order that evidence be heard in camera or suppress publication

Question 45

21(3). oath or affirmation

Answer 45

a person called to produce a document need not take an oath or affirmation.

Question 46

Dyers

Answer 46

Any comment made cannot speculate about what a witness might have said.

Such a direction can be given when it is possible to think that the jury might think that the evidence could have been, but was not, given or called by the accused.