Templates Flashcards
*Relevance
s 55 - rationally affect (directly or indirectly) the assessment of the existence of a fact in issue
Threshold test is whether there is a logical connection between the evidence and a fact in issue: *Papakosmas v The Queen (1999)
*
Argue:
the effect of the evidence is so ambiguous that it could not rationally affect the assessment of the fact in issue, the evidence is irrelevant:* Lithgow City Council v Jackson *
Evidence that is irrelevant, no further questions arise as to admissibility, irrelevant evidence shall not be received. Smith
*Admission
Definition - Dictionary EA
S 81 EA excludes hearsay and opinion rule to evidence of admissions
Only first-hand hearsay evidence of an admission can amount to evidence of the truth of what was said by a party (ss 62, 82), Lee v The Queen (1998)
Proof of Admissions — s 88. court satsified - “reasonably open” to find that he or she made the admission. ( burden less than other issues relating to the admissibility of evidence)
Exclusions - admissions against third parties, influenced by violence, unreliable
S 85 - reliability of admissions by defendants
s 90 - discretion to exclude (unlike 138 does not involve a balance of public interest)
Discretion to exclude - unfairness in the widest possible form “Em v The Queen”
Test SIO
Note: Coduct indicating consciousness of guilt can be used as admission evidence (Edwards v Queen)
*Authenticity
s 48 - ways the document can be proved and tendered
s 58 - if a question arises as to the relevance the court may examine and draw inferences - including inferences of identity of authenticity.
“The question of a document’s authenticity is relevant only to the tribunal of law’s consideration of relevance under s 55. It has no other role.” ACCC v AirNZ
Process ACCC V AIRNZ and Gregg:
- Determine if the document is relevant to a fact in question (s 55). “The first question is to determine the relevance of the document to the facts in issue” Gregg
- Assess if the document can influence the assessment of the probabilities of the fact, including its authenticity.
- Examine the document or thing in question (s 58).
4. Draw reasonable inferences from the examination, including those related to authenticity or identity. - Law allows drawing inferences from various sources beyond just the document itself (s 58).
*Bail Test
s 7 BA definition
IAfter sentencing? 22A
- Van Gestel
‘will’ - realistically inevitable, rather than what may or is likely to happen
- Van Gestel
Consider:
(1) Offence and Sentencing Laws
(2) Abbreviated Application - not pseudo sentencing hearing
(3) Court Submissions
Two stage test:
1. Show Cause? 16A
– Moukhaletti
Demonstrated by a single powerful factor or a combination of powerful factors,
- 16b Unacceptable risk - Stanley
- Bail concerns
- Matters for consideration: 18
S 16: note - Conditional or unconditional release
Conditions that may be imposed to mitigate concerns
*Credibility of a witness
- Relevance s 55
- s 102 EA - credibility rule
- Relevant exception?
*103 - (evidence adduce in x) - TEST - substantially affect the credility - That is: substantive probative value:
(Not enough that the witness is a discreditable person; it must be directed as to whether the witness is to be believed on his oath R v Slack (2003)
*** s 104? **- additional safeguard where the accused is being cross examined as to character
** s 106? ** REBUTTAL: distinguished from Section 104 (104 applies to cross-examination of the accused) s 106 applies to the introduction of evidence contradicting the evidence of a witness (including the accused): R v PLV (2001) 51 NSWLR 736 at [91].
OR
** S108 ** re-establishing credibility - evidence adduced in re-examination, - does not permit the witness in re-examination to merely reiterate his evidence-in-chief: Clarkson
- 192 - matters to be taken into account when giving leave as well as any other relevant matter. Stanoevski
- discretion pursuant to s 189 in the absence of the jury and the witness (the voir dire)
*Character
- Relevance:\
s 110:
Character: “Character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person “ Melbourne v Queen”
The raising of good character requires a conscious decision on the part of the accused: Gabriel v R good character is not raised, where a witness volunteers the evidence: PGM v R (2006)
cross-examination - permitted only with leave - s 112.
Leave must consider 192 EA - Stanoevski
Note: Stanoevski declined to “harmonize” Pt 3.7 (Credibility) and Pt 3.8 - Character is, however, relevant to credibility
*Costs FCA / NSW
FCA s 43 - The court has a broad discretion
FCR 40.03 - If the court reserves costs but makes no further order, costs follow the event
(FCR r 40.01),Unless a costs order states otherwise, costs are “costs as between party and party” LOOK FCR Dictionary CPA s 98(1)(c)
Indemnity costs - FCR Dictionary,
The difference between costs on an ordinary and indemnity basis may not be great, given the measure of “fairly and reasonably incurred”. Significance is the reversal of the onus of proof. For indemnity costs, the onus is on the payer to show that the costs were unreasonably incurred or for an unreasonable amount.
*Discovery / disclosure WITHOUT AGREEMENT
Part 21 UCPR / SC.EQ.11 -
in the absence of agreement, discovery can only be required pursuant to an order of the court
ucpr r 21 - court discretion to require or limit discovery - discretion exercised having regard to ss 56 and 57 of the CPA.
SC.EQ.11
- disclosure by the court is usually postponed until both sides present evidence, except in exceptional cases.
- In the Equity Division, disclosure is only ordered if vital for resolving main disputes.
- Requests for disclosure need an affidavit explaining its necessity, the types of documents sought, and expected costs.
Note: no power to make an order for general discovery - court’s order must specify the class or classes of documents of which discovery is to be given: r 21.2(1)(a).
Discovery not required:
Relevance not established
Privilege documents
Procedure
The party subject to the order must serve on the other party a list of documents in its “possession”
Time allowed for serving such a list is normally 28 days, but this time may be varied by the order: r 21.3(3).
Note that “possession” is defined in s 3 of the CPA to include “custody and power”.
The list of documents must be verified in accordance with r 21.4.
Inspection: Within 21 days after service of the list of documents or such other time as the court may specify. r 21.5.
.
*Hearsay
- Issue to be adduced: document 48 / witness 13
- Relevance 55
- authenticity as to relevance 58
- 59 Hearsay - exclusion of hearsay evidence (representation may include conduct Lee)
- Does an exception
- Does 62 apply? (Div 2 exceptions)
- Exception?
- Notice required?
- Is s 60 engaged? Evidence relevant for a non-hearsay purpose
- Exclusions
- Warning 165(1) Hearsay evidence
*Tendency
s 55 Relevance -
IMM - If relevance satisifed credibility and reliability not assessed for admissibility purposes - especially when one complainant.
Q? Is the evidence being adduced to show a tendency to act in a particular way or have a particular state of mind?
97(1)(a) reasonable notice
97(1)(b) significant probative value:
IMM: probative value must
be approached on the assumption that the jury will accept the evidence. The credibility or
reliability of evidence cannot be considered when assessing probative value.
Hughes: Strength of the conduct evidence to show tendency - extent to which the tendency increases the likelihood of the facts in issue.
“special unusual or particular” features
101(2) PV outweighs prejudicial effect
*Opinion
Relevance 55
Dasreef - relevance requires identification of the fact in issue the party is trying to proce or assist to proce
76(1) - exclusion of opinions
79(1) - elements:
- specialised knowledge
- wholly or substantially
Principles:
SK - more than substantive belief or unsupported speculation (Honeysett)
Transparency of reasoning between opinion and SK > sufficient connection (Dasreef)
Wholly or substantially: “must be presented in a way that makes it possible for a court to determine that it is so based”
*Procedural question
- jurisdiction
- practice note
- ethical issues
- process
- answer
*Cross Vesting
State or federal law matter?
CVA - s 4 confers state matters to the state
JA 39B - Federal Juridiction for cases created by federal statute - extends to matters where federal issues are raised (claim or defense)
Consider - Nature of parties
Source of Law
Remedy
TRANSFER: S 5
Transferring does not consider preference of parties
consider:
Jurisdiction
Interest of justice
matters arising from common law
5.1 -up to federal
5.2 - out to the states
5.3 - in to NSW
5.4 - Down to NSW
*Adducing Evidence
How to adduce? 48 (document) or 12/13 (witness)
55 - Relevance
58 - Authenticity as to relevance (ACCC V AIRNZ and Gregg)
Admissibility (admission? hearsay etc.)
Exclusions 135 - 137
Warnings
*Judge Alone
Application Process 132
Who? Accused or prosecutor
If agree mandatory
Disagree consider interest of justice
May refuse of factual issues involve objective community standards
Accused must have received legal advice
Possible if risk of interference - must be real evidence of prejudice (Belghar) - not overcome by jury undertakings and directions (Belghar)
Principles for interest of justice: (Simmons and Moore)
No presumption of jury
Community standards
No preference for one or the other
Efficiency and length of trial
*Calderbank Offer
Principles addressed in TRELOAR
CPA 98: “full power” of the court to exercise discretion in the making of orders with respect to costs
42.2 UCPR - Assessed on ordinary basis
98(1)(c) CPA / 42.5 UCPR - Discretion to award on indemnity
Calderbank MAY influence determination for indemnity.
Calderbank (Whitney)
- shown to intend that non-acce[tance basis for seeking special costs
- depends on the message conveyed by the offer itself.
*Personal misconduct > Professional
Disciplinary jurisdiction
- protective of the community (Di Suvero, P and Meakes)
-Maintain and encourage appropriate standards if professional behaviour (Di Suverp, Costigan)
Court will generally catergorise conduct as PMC or UPC (296 and 297 LPUL)
Ziems addressed the common law authority to find professional misconduct to acts not directly in the course of professional practice TEST:
1. Sufficiently close connection with actual practice
2. manifest the presence or absence of qualities which are incompatible with or essential to legal practice.
Qualities (Cummins)
Legal practioners require the highest standard of integrity:
1. Clients must feel secure to trust with private affairs
2. Fellow practioners depend implicitly on their word
3. Confidence of the judiciary
4. Public confidence in the profession
PMC will not necessarily mean being struck from the roll / Finding of PMC also not required to be deemed unfit to practice (A solicitor)
Determining if struck from the roll is a matter of degree (Murphy)
Court will consider (Costigan):
- Allinson test - relevant but not determinitive (Cummins)
- Fame and good character
- Fit and proper person to remain on the roll
- assessed at time of hearing not at the time of offence (A solicitor)
- objective standard (Sahade)
- “command the personal respect of lay and professional clients, other members of the bar and the juidiciary.”
Note the right to appeal.
*Involvement in expert reprots
Federal line of authority to the extent the LP may alter the format for clarity and to conform with formalities. Assist the court in the admin of justice as per case management principle CPA 56 and BR 4(a), 23 and 57
“Lawyers should be involved in the writing of reports by experts in order to ensure the legal tests for admissibility are addressed” Harrington Smith
Alterations that alter or disguise the experts genuinely held opinion are improper - Kelly
*Cost disclosure
barristers determine their rates, within the bounds of fairness and reasonableness 172 UL.
requirement to disclose charging details to clients before commencing work - including the basis for calculating costs (Costigan)
disclosure requirements vary based on whether barrister is retained directly by the client or indirectly through another law practice.
disclosure requirements:
retained by client 174
retained by solicitor 175
Implied time requirement. The instructing solicitor should give corresponding disclosure as soon as practicable > follows that the indirectly retained barrister should make disclosure before or very shortly after the retainer
Note duty is ongoing
Consequence of non-disclosure 4.3 LPUL
207 LPUL - Disciplinary action unreasonable legal costs - may be characterised as UPC or PMC
*Cost Agreement
Not mandatory but beneficial
Benefits:
benefit of presumption under UL s 172(4) for fair and reasonable costs.
b) Enforce arrangement with client/solicitor as contract under UL s 184.
c) Avoid disputes over fee liability.
d) Recover fees via costs assessment if no contract exists (Pentelow v Bell Lawyers).
e) Charge interest on unpaid costs more favorably (UL §195).
f) Require trust money or other security for fee payment.
Costs agreements void if not compliant with UL Division 4, Part 4.3: UL §185.
*Preliminary Discovery to assess prospects
UCPR 5.3 by order of the court
Process: Motion > Affidavits > Personal Service
Determination not on merits but whether it appears to the court that the cause of action “may” exist. O’Connor v O’Connor
FC: Reasonable cause to believe
Prospects: Entitlement and Quantum
- Thoroughly investigate factual matters and potential defences and reasonable inquiries of the potential defendant.
- Address potential objections (fishing and privilege)
- Consider making further specific requests for information.
- Provide reasonable notice of the intended application for preliminary discovery.
- Prepare an affidavit addressing each element of Rule 5.3.
- File the application as a Notice of Motion or Summons.
- Personally serve the application on each prospective defendant.
- Assess the need for raising funds for security of costs.
*Preliminary Discovery to ascertain identity or whereabouts
UCPR 5.2 - By order of the court
Process: Motion or summons, affidavit of relevant facts, personal service
Conditions: reasonable inquiries and unable to ascertain identity or whereabouts
Prima Facie case relevant but not required: The Age v Liu
Consider CPA objective 56 Just, quick, cheap.
*Prosecutor duty of disclosure
Bar Rules: 83, 87, 88 and 89
Bradley: Accusatorial system mandates prosecutors to disclose relevant material -
Nguyen: put case fully and fairly.
Nguyen: prosecution has a duty to tender “all available, cogent and admissible evidence” unless there’s a valid reason not to.
Reardon: formulated the scope for duty of disclosure
Prosecution has an obligation to disclose all relevant material:
* material that is or may be relevant to issues in the case
* material relevant to new issues that may not pertain to the prosecution case
* Material with a real chance of providing a lead
Duty should not be read narrowly as it ameliorates the inequity of resources between the crown and the accused.
*Disciplinary hearings - failure to give evidence
Punch and Meakes
Refusal should be subject to harsh criticism
Significantly detracts from the weight of character references
Assumption that refusal is because the evidence would not have helped the case.
*Accused silence
Jones v Dunkell inappropriate against the defence (Mahmood and Dyer)
s 89 - right to silence
Does 20(a) apply EA?
Dyer “rare and exceptional circumstances”
Matters known pecularly only to the defence
*Adverse Parties
BR - Duty to client
UCPR 7.25
LC Rules 8.23
Conflict of interest rule. Exceptions made with leave
Exceptions generally made for will contested cases.
*Departing from “costs follow the event” (depriving a successful party)
Departure
* 42.1 (no more favourable) or
* Disentitling conduct (oschlack) - calculated to occassion unnecessary expense
* Late amendment (Faraday)
* Only nominally successful (oshlack)
* Quantun and proprotionality - damages recovered v cost of pursuing UCPR 42.34 and 42.35
* Public interest (Oshlack)
*Competance
SH V R and s 13 EA
EA requires every witness to take oath or affirmation - except person who gives unsworn evidence
Primary test for competance
- understand question
- communicate comprehensible answer
NOT ALL COMPETANT WITNESSES COMPETANT TO GIVE SWORN EVIDENCE
TEST SH V R
capacity to understand obligation to tell the truth.
Lack of capacity - unsworn evidence must comply with 13(4) and 13(5)
- strict complicance
- instruction must come from the court
CHILD SEXUAL OFFENCE?: DIS.CRIM.05
- Address before trial way child gives evidence and rights of the child - evidence (childrens) act.
- arrangement for inspection of exhibits when evidence given by CCTV.
*Workplace misconduct
1.Chambers adopted guidelines? Residents of chambers commited to adopt and implement
2. Classify conduct?
3. Bar Rule Breaches?
* 123 or
* 8 (8b - because undermined the work of another solicitor, who was upset and vulnerable - Raphael)(8c - legal profession to a high standard and expect that barristers will comply with community expectations and norms - Raphael)
4. Appropriate response
**By law? **
316 Crimes Act Mandatory reporting
WHS Act: binding on barristers s 19 and 28 obligations to the health and safety of others.
Reporting and the Grievance and complaints framework
a) affected person (note support services)
b) bystander
Early
Interum
Formal / Informal
External
5. Principles of reporting
6. Procedural Fairness and Natural Justice
7. Disciplinary consequences
7. Right to Appeal
*Disciplinary consequences UPC
guilty of unsatisfactory professional conduct, s 302 of the Uniform Law, read with s 299, gives the Tribunal power to make any orders they think fit, (Raphael) including:
- an order cautioning the respondent; or
- an order reprimanding the respondent.
A caution is a lesser sanction than a reprimand -
* does not amount to “disciplinary action”,
* not published on the Register of Disciplinary Action Part 12 of the LPUL
Purpose:
-Protective of the community (Meakes, P, Di Suvero, Raphael)
-Maintain and encourage appropriate standards if professional behaviour (Di Suverp, Costigan)
*Pleadings / Particulars
Definition - UCPR Dictionary and 14.1 application
Particulars UCPR 15.1 / 15.9
Purpose: Banque
- state with sufficient clarity case to be met
- procedural fairness requirement
- relief generally confined to that available in pleadings (change by consent)
UCPR 14.26 admission, denials and joinders
Form: 14.6
14.7 Facts, not evidence
14.8 Brevity
14.9 Impact or significance of a document or what was said, rather than quoting - unless the specific words are crucial.
14.13: must not claim an amount for unliquidated damages
15.2 Scott schedule” in building, technical and other cases
Option 1:
15.1 Application for further and better particulars:
15.10 - power to order further particulars
Particulars cannot be used to fixed defective statment of claim (sandilands v goldsmith) - only to narrow the scope.
Option 2:
13.4 Striking out pleading - summary disposal
Applicants option:
Leave to amend a pleading
*Media
Hearne -
Implied Undertaking in Court Processes
affirms: “Harman” undertaking, prohibits the use of information obtained through compulsory Court processes for purposes unrelated to the proceedings.
BR > 76 - 78
UCPR 21.7 docs not to be disclosed
*Separate Trials
Power to conduct a joint trial conferred by s 29(2) CPA -
Matter of principle and policy (Symms)
Grounds for separate >
21(2) CPA:
1. prejudiced or embarrassed in his or her defence
2. court satisfied that for any other reason the accused should be tried separately
DOMICAN - separate trials is not automatic just because there will be evidence led in a joint trial that will be inadmissible against one accused.
MERRIT AND ROSSO Take into account take the interests of the applicant AND the interests of the administration of justice.
Middis and Caleo:
Separate trial should be ordered when an applicant is able to demonstrate three
things:
- evidence against the applicant is significantly weaker than, and different to.
- evidence against the other accused contains material which is highly prejudicial to the applicant, and not admissible against him >
“there are cases where there is a real risk that, notwithstanding the directions given, the jury will unconsciously take into account the inadmissible evidence.” Caleo
- Crown case against the applicant will
be made immeasurably stronger by reason of the prejudicial material
