The Exclusive Rules of Evidence

Question 1

Exclusive Rules of Evidence

Answer 1

• Veracity, propensity, opinion, hearsay, identification, improperly obtained evidence

Question 2

Veracity - Substantially Helpful

Answer 2

VERACITY RULES (S37) - SUBSTANTIALLY HELPFUL (judge to consider)

• Bias on part of the person
• Any previous inconsistent statements made by the person
• A motive on part of the person to be untruthful
• Person has been convicted of 1 or more offences that indicate a propensity for dishonesty/lack of veracity
• Lack of veracity on part of person when under legal obligation to tell the truth

Not sufficient where prosecution wish to offer evidence about a defendants veracity and where defendant offers veracity evidence about codefendant.

Question 3

Prosecution May Only Offer Veracity If

Answer 3

VERACITY EVIDENCE BY PROSECUTION ONLY IF (S38) -
2(a) Defendant has offered evidence about their veracity or has challenged the veracity of a prosecution witness by reference other than the facts about in issue
2(b) and Judge permits the prosecution to do so.

• must show veracity is relevant
• defendant has offered evidence about their veracity/other prosecution witness
• proposed evidence mets substantial helpfulness test
• prosecution get permission from judge

Question 4

In Determining Veracity Evidence

Answer 4

JUDGE TO CONSIDER 38(2) TAKE INTO ACCOUNT
38(3) - extent to which defendants or prosecutions witnesses veracity has been put in issue
- time elapsed since any conviction in which prosecution is looking to give evidence
- if any evidence given by the defendant was elicited by the prosecution

Question 5

Propensity Requirements

Answer 5

PROPENSITY ADMISSIBILITY (S40)

• Shows propensity to act in particular way/state of mind related to evidence of acts/omissions/circumstances which person is alleged to have been involved
• Have probative value in relation to issue in dispute
• Have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on defendant

(b) does not include evidence of act/omission that is one of the elements of the offence for which person is being prosecuted or cause of action in the current proceeding

Question 6

Veracity/Propensity and Bail/Sentencing

Answer 6

VERACITY/PROPENSITY and BAIL/SENTENCING
- Does not apply unless evidence relates directly/indirectly to sexual experience of the complainant with any other person other than defendant or their reputation in sexual matters

Question 7

Exclusion of Opinion Evidencs

Answer 7

EXCLUSION OF OPINION EVIDENCE/UNRELIABILITY (except S24/S25)

• Bare opinion holds little probative weight
• Danger it could usurp function of the tribunal of fact. Could confuse the tribunal of fact (which is to draw inferences from facts presented) and prolong proceedings
• Opinion may be based on other evidence which if stated expressly would be inadmissible- largely propensity

Question 8

General Admissibility of Opinion

Answer 8

NON-EXPERT OPINION EVIDENCE
To be admissible under S24:
- Must be the only way which they can effectively communicate the information to the fact finder
- Must be stating an opinion from something they personally perceived

Question 9

Expert Evidence Requirement

Answer 9

EXPERT EVIDENCE ADMISSIBILITY S25

• Be that of an expert
• Comprise of expert evidence
• Offer SUBSTANTIAL HELP to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding that is of consequence in the determination of the proceeding

Question 10

Qualification of an Expert (S4)

Answer 10

QUALIFICATION OF EXPERT
Expert is required to demonstrate to court they have specialised knowledge/skill based on study/training/experience.
Judge to decide if properly qualified - expert is required to demonstrate they have requisite qualification in their field

Question 11

Hearsay Circumstances Reliability

Answer 11

HEARSAY RELIABILITY (S16(1) CIRCUMSTANCES)

• Nature of the statement
• Contents if the statement
• Circumstances around making of the statement
• Circumstances to veracity if person making statement
• Circumstances regarding accuracy of the observations of the person

Question 12

Hearsay Rule

Answer 12

HEARSAY RULE (S17(1))

• (a) Hearsay not admissible except as provided by this subpart or by the provisions of any other Act
• (b) Or in cases where the Act provide that this subpart does not apply and the hearsay statement is relevant and not otherwise admissible under this Act.

Question 13

Why is Hearsay Generally Excluded

Answer 13

HEARSAY EXCLUSION

• Where statement maker is not a witness there is no opportunity to cross-examine regarding content
• Juries can’t evaluate evidence properly without being able to see demeanour of original statement maker
• Danger that witnesses will make mistakes about content/meaning of statement made by other people e.g. Chinese whispers