Miscellaneous provisions

Question 1

189 – The voir dire

Answer 1

A PRELIMINARY QUESTION is a question regarding the:

• ADMISSION of evidence, or
• USE of evidence, or
• COMPETENCE OR COMPELLABILITY of a witness,

which relies on the existence of A PARTICULAR FACT.

If there is a JURY, a hearing on the fact to be determined for a preliminary question should be heard WITHOUT THE JURY.

The existence of a FII in a particular hearing must be determined on the BoP (s142).

A voir dire is part of the trial itself and the general admissibility rules apply BUT can be waived (s 190).

In deciding whether to make such an order, the court must take into account (inclusive of any other factors it may take into account)—

• whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the A; and
• whether the evidence concerned will be adduced in the course of the voir dire; and
• whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than a voir dire or sentencing hearing).

Question 2

190 – Waiver of rules of evidence

Answer 2

While the parties may consent to waiving many rules of evidence, there are some rules - such as the prohibition on calling the A in criminal proceedings - that cannot be waived. A court that permits a party to breach these rules falls into jurisdictional error.

With the CONSENT of the parties, the COURT MAY WAIVE only the following rules of evidence:

• General rules about giving evidence (s26 – s36);
• Examination in chief and re-examination (s37 – s39);
• Cross examination (s40 – s46);
• Documents (s47 – s51);
• Other evidence (including views) (s52 – s54);
• Rules on Hearsay, Opinion, Admissions, Evidence of Judgments and Convictions, Tendency and Coincidence, Credibility, and Character (s59 – s112).

Question 3

191 – Agreements as to facts

Answer 3

Parties to a civil or crim proceeding may agree that a particular fact shall not be disputed.

The effect of agreement is that the agreed fact is taken as proven; and as such a party must obtain leave to contradict or qualify the agreed fact or before leading evidence to prove it.

A statement of agreed facts must:

• be in writing, signed by parties or their legal practitioners and adduced in evidence; or
• if the court gives leave, be orally stated by a party before the court with the agreement of all other parties.

Question 4

192 – Leave permission or direction may be given on terms

Answer 4

A court may give any leave, permission or a direction on any terms the court thinks fit. If a court does grant leave, it must advert to this provision when doing so.

Courts must consider the factors listed in s192(2)(a)–(e) if those factors are relevant:

• DELAY: the extent to which leave etc is likely to add unduly to, or shorten, length of hearing;
• FAIRNESS: the extent to which to do so would be unfair to a party or to a witness;
• IMPORTANCE: importance of the evidence in relation to which leave, permission or direction is sought;
• the nature of the proceeding; and
• the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Question 5

192A – Advance rulings and findings

Answer 5

S 192A permits a court to give an advance ruling on:

• the admissibility or use of evidence, or
• the operation of a law of evidence, or
• the giving of leave, permission or direction.

Question 6

193 – Additional powers (inspection of documents)

Answer 6

Court powers in relation to—

• the discovery or inspection of documents; and
• ordering disclosure and exchange of evidence, intended evidence, docs & reports—

extend to enabling the court to make such orders as the court thinks fit (including orders about methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents.