Part 4.5 - Warnings and information — Civil only; Part 4.6 - Ancillary provisions Flashcards
Corroboration
Corroboration
● Don’t have to give ‘no corroboration warning’ in civil
● Must not in crime except for perjury
165 - Unreliable evidence
● (1) Applies to:
○ (a) hearsay / admissions/ (b) ID
○ (c) Evidence the reliability of which may be affected by age, ill health (physical or mental), injury or the like
○ (g) In a proceeding about the estate of a deceased person, evidence adduced by a person seeking relief in the proceeding that is evidence the deceased could have given evidence about if they were alive
● (2) If there is a jury and the party requests, judge is to:
○ (a) Warn the jury that the evidence may be unreliable
○ (b) Inform the jury of the matters that may cause it to be unreliable
○ (c) Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
● (3) But doesn’t have to if there are good reasons for not doing so.
● (4) Don’t need a particular form of words.
165A - Warnings in relation to children’s evidence
(1) If there is a jury must not do any of the following:
● (a) Warn or suggest that children as a class are unreliable witnesses
● (b) Warn or suggest that evidence of children as a class inherently less credible or reliable or requires more careful scrutiny than evidence of adults
● (c) Warn or suggest about unreliability of partic child’s evidence solely bc of their age
● (2) But can warn or suggest (a) particular child unreliable and the reasons why/ (b) warning re determining whether to accept the evidence of that child and the weight to be given to it ONLY IF party has satisfied the court there are circumstances other than age that affect the reliability of the child’s evidence and that warrant the giving of the info/ warning.
Div 1 — Requests to produce documents or call witnesses
Under 167, Party can request another party to produce a document or thing or call a witness that can give evidence about a document or thing for the purpose of determining a question that relates to:
(a) A PR
(b) Evidence of a conviction of a person for an offence; or
(c) The authenticity, identity or admissibility of a document or thing.
168(1)ff Time limit (can be extended) for making a request is 21 days after notice of intention to adduce the relevant evidence was given
169 If party fails without reasonable cause (SF) to comply with such a request, court has power to:
(1)(a)-(b) Order them to comply
(1)(c) Order that the evidence in relation to which the request was made not be admitted
(1)(d) Adjournment and costs as is just.
(5) In deciding appropriate action, court to take into account:
(a) Importance of the evidence in the proceeding
(b) Whether likely to be a dispute
(c)-(e) Whether there is reasonable doubt about authenticity or accuracy etc
(g) Whether compliance would cause undue delay etc.
(h) Nature of the proceeding
Div 2 — Proof of certain matters by affidavits or written statements
170-171 Evidence about facts in relation to documents or things
Where evidence of a fact has to be proved in relation to a document or thing because of one of the following provisions of this Act, 171(1)(a)-(b) evidence of that fact can be given by affidavit (or written statement if public doc) (deponent being a person who had responsibility for making or keeping document or thing at the relevant time).
● S48 proof of contents of documents
● Ss 63 - 65 hearsay exceptions for FHH
● S69 hearsay exceptions for business records
● S70 hearsay exceptions for tags, labels and other writing
● S71 hearsay exceptions for telecommunications
● Provisions of Pt 4.3 facilitation of proof
172 Evidence based on knowledge, belief or information
(1) Despite Chapter 3 (admissibility), evidence in an affidavit may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has (2) — must set out the source of the knowledge or information or the basis of the belief
173 Notification and calling deponent
(1) Copy of affidavit to be served on each party a reasonable time before hearing of the proceeding
(2) Party who tenders it must call deponent if requested to do so by the other party
177 Certificates of expert evidence
(1) Evidence of an expert’s opinion can be adduced by tendering a certificate signed by the person that states their(a) name and address and (b) states they have specialised knowledge etc. and (c) sets out an opinion they hold and that it is expressed to be wholly or substantially based on that knowledge
(2) Only applies if serve (a) copy on OP and (b) give written notice that you propose to tender it as evidence of the opinion (3) (at least 21 days before hearing)
(5) -(6) If OP says no, we want you to call the W, then expert certificate is not admissible → (7) but court can make any order it considers just in respect of a party who has, without reasonable cause, required a party to call a person to give evidence under this section.
178 Certificates of Judge etc re: acquittals and other judicial proceedings
Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts—
(a) the conviction or acquittal before or by an applicable court of a person charged with an offence (b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court; (c) an order by an applicable court; (d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court—
(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding; and (c) stating the title of the applicable court.
(3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.
(4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.
(5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.
(6) In this section—
“acquittal” includes the dismissal of the charge in question by an applicable court;
“applicable court” means an Australian court or a foreign court.
