1. Anatomy of Criminal Trial - LawCorners Web viewPQs which must be heard in absence of jury...

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Litigation 2 Final Notes 1. Anatomy of Criminal Trial...................................................................................................................................2

2. Witness Questioning...........................................................................................................................................4

3. Accused as a witness...........................................................................................................................................8

4. Powers of Court..................................................................................................................................................9

5. Logical Relevance..............................................................................................................................................10

6. Legal Relevance................................................................................................................................................12

7. Credibility.........................................................................................................................................................14

8. PIS Issues..........................................................................................................................................................18

9. Hearsay.............................................................................................................................................................19

10. First Hand Hearsay Exceptions.........................................................................................................................20

11. Remote Hearsay Exceptions............................................................................................................................23

12. Accused/Co-accused’s Character.....................................................................................................................24

13. Tendency & Coincidence Evidence...................................................................................................................26

14. Opinion Evidence............................................................................................................................................29

15. Identification Evidence....................................................................................................................................32

16. Warning & Directions......................................................................................................................................35

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1. Anatomy of Criminal Trial1. Pre-trial hearings (s 139 CPA)

a. Advanced Determinations (s 192A)i. Preliminary questions may be determined before trial commence and before jury has been

sworn (s 130 CPA)ii. Court may make advance ruling before evidence is adduced in proceedings if a question

arising in any proceedings regarding (s 192A)1. (a) Admissibility or use of evidence proposed to be adduced, or 2. (b) Operation of a provision of any law in relating to evidence proposed to be

adduced, or 3. (c) Granting leave/permission/direction under s 192

iii. Counsel and court must weigh up level of determinacy available at the time the advance determination is sought and consequence and likelihood of unknown variables arising later in trial (Adam v R)

iv. No power for TJ to make an advance ruling requiring a discretionary determination (TKWJ)b. Voir Dire (s 189)

i. (1) Preliminary question (PQ) where court needs to determine if a fact exists to decide if:1. (a) Evidence should be admitted (whether discretion is exercised or not), or 2. (b) Evidence can be used against a person, or 3. (c) Witness is competent or compellable

ii. (2) PQs which must be heard in absence of jury include: 1. (a) Whether particular evidence is:

a. Evidence of an admission or b. Illegally/improperly obtained evidence that may be excluded under s 138

(a), or2. (b) Whether that evidence should be admitted

iii. (3) In hearing of PQ regarding whether D’s admission should be admitted, the admission’s truth/untruth must be disregarded unless D introduced the matter

iv. (4) Jury must be absent from hearing determining any other PQ unless the court so orders v. (5) Court may consider whether the evidence heard in hearing for PQ:

1. (a) Is likely to prejudice D, and 2. (b) Will be adduced in the course of the hearing to decide PQ, and 3. (c) Would be admitted if adduced at another stage of the hearing

vi. (6) Self incrimination privilege exception (s 128(10)) does not apply to hearing to decide PQ vii. (8) If a jury is absent from hearing to determine a PQ, W cannot give evidence at hearing

unless (8): 1. It is inconsistent with other evidence given by the witness in the proceeding, (a) or 2. Witness has died (b).

c. Standard of proof for admissibility - BOP (s 142(1))i. (2) Court MUST consider:

1. (a) consider importance of evidence, and 2. (b) gravity of matters alleged

d. Matters of common knowledge do not need proof (s 144)i. (1) No proof required about knowledge that is not reasonably open to question and is:

1. (a) Common knowledge where proceeding is being held or generally, or 2. (b) Can be verified by referring to an authoritative document can cannot reasonably

be questioned. 3. Knowledge should be so widely held as to give rise to the presumption that all

persons are aware of it (Properjohn)ii. Court and jury is to take knowledge of that kind into account (3).

iii. (4) Party must be given an opportunity to make submissions, and to refer to relevant info that relates to acquiring or consider common knowledge in a way that is necessary to ensure not no unfair prejudice

1. Judge must tell parties what has been consulted and what conclusions were drawn so that they may correct the judge’s mistakes/misapprehensions (McAuslan)

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2. Opening address of P & D3. P’s case then D’s case (s 28)

a. 3 stages of WQi. EIX

ii. XXiii. RE-X

b. Manner and form of WQ (s 29)4. D’s case (As above)5. Closing address of P & D6. TJ sums up7. Warnings and directions

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2. Witness Questioning1. Every person is competent or compellable to give evidence about fact EXCEPT (s 12)

a. Lack of capacity (s 13)i. (1) Person is not competent if cannot:

1. (a) Understand question or2. (b) Give an answer to a question,3. And that incapacity cannot be overcome - English difficulty interpreters (s 30); mute

& deaf witnesses (s 31)ii. (2) Person not competent to give evidence under (1) may be competent to give evidence

about other factsiii. (3) Person not competent to give sworn evidence (4) may give unsworn evidence if told that:

1. (5)(a) It is important to tell the truth, and 2. (5)(b) Should tell the court if they do not know/can’t remember answer3. (5)(c) Should feel no pressure to agree unless believes statement to be true 4. Unsworn evidence’s implications

a. Test for unworn testimony is substantially difference and less rigorous than competent required for sworn evidence (ALRC)

b. UEA is silent on whether weight or credibility of evidence is affected, orc. Whether a witness can be guilty of perjuryd. However possible warnings for unreliable evidence (s 163, s 165A)

5. E.g. 9 y.o’s unsworn testimony re sexual assault – jury need specific directions and comments due to age, inability to give sworn evidence, delay in telling mum, and P’s case depending on truth of evidence (Mills)

iv. (6) Presumption: Person not incompetent simply because of this sectionv. (7) Evidence not inadmissible because witness dies/becomes incompetent halfway

vi. (8) Expert info may be obtained for court to inform itself b. Reduced capacity (s 14)

i. Person not compellable to give evidence if: 1. (a) Substantial cost or delay to ensure person will have capacity 2. (b) Adequate evidence on that matter has/will be given from persons or source

c. Family members (s 18)i. (2) Spouse, de facto partner, parent or child of a D may object to being required as a witness

for P (a) to give evidence, or (b) give evidence of communication with D1. (3) Objection made b4 person gives evidence or as soon as practicable after aware2. (4) Court must make such a person aware of this right 3. (5) Court is to hear & determine objection in the absence of the jury4. De facto relationship depends on (Dictionary cl 11 Pt 2)

a. Duration of relationship,b. Common residencec. Financial and property arrangementsd. Mutual commitment to shared lifee. Care and support of childrenf. Reputation/public aspects of relationship

ii. (6) Objecting person must not be required to give the evidence if the court finds that: 1. (a) Likelihood that harm would or might be caused to the person, or to the

relationship between person and D, and a. E.g. wife not testifying to adultery to protect her & husband’s honour (Khan)

2. (b) The nature and extent of harm outweighs desirability of having evidence given iii. (7) To determine if ‘harm’ may occur, court must, but is not limited to considering:

1. (a) Nature and gravity of the offence,2. (b) Substance and importance of evidence & weight that is likely to be attached to it,3. (c) Whether other evidence concerning the same matters is available to P 4. (d) The nature of the relationship between the D and person, 5. (e) Whether person would have to disclose matter received from D in confidence

iv. (8) If an objection has been determined, P may not comment on: 4


1. (a) The objection, or 2. (b) The decision of the court in relation to the objection, or 3. (c) The failure of the person to give evidence.

d. Competent: Capable of giving evidence according to lawi. Capable: assessment of ability to function as W, not assessment of their value/ cred

ii. Competence usually determined in the absence of jury (Demirok)e. Compellable: Can be subpoenaed to give evidence (Gilby) – refusal is contempt of court

2. Refreshing memory (s 32)

a. No arbitrary time limit (Singh) i. Real test is state of W’s memory at the time they made/read notes (Singh)

ii. Although the interval is highly relevant, must also regard nature and extent of evidence given (J v R)

iii. Not limited to hours or days, up to 7 weeks (R v Adam), but not years (Graham v R)iv. Fresh in memory:

1. ‘Recent’ or ‘immediate’ & quality of memory as ‘not deteriorated or changed by lapse of time’ (Graham v R)

2. Fresh is different from vivid (ALRC)b. Factors in 2(b) are merely guidelines, not mandatory (R v L Cassar)c. (3) W using a doc to revive memory may, with leave s 192 read aloud related sections of the doc d. (4) On request of party, court is to give directions as it sees fit to ensure doc relates to proceedings

produced to that partye. POs can depart from refreshing memo rules (s 33)

i. (1) PO may give EIC for P by reading or being led through a written statement previously made by PO

1. No need to exhaust their memories or showing a need to refresh memoriesii. (2) Evidence cannot be so given unless:

1. (a) Statement is made by PO at time of or soon after event2. (b) PO signed the statement when it was made3. (c) Copy of statement had been given to the person charged or lawyer within

reasonable time before the hearing of evidence3. Cannot lead in EIC/RE-X unless (s 37(1))

a. (a) Leave s 192b. (b) Introductory (Maves)

i. Should* lead c. (c) No objection

i. TJ can still prevent leading questions (Varney)d. (d) Not in disputee. (e) Expert on hypothetical factsf. Leading questions (Dictionary):

i. Question to W that directly/indirectly suggests a particular answer to the question orii. Assumes the existence of a fact in dispute where witness has not yet given evidence as to

the existence of which before the question is askedg. Examples where leading is acceptable in EIC/RE-X (Maves),

i. Where elements of evidence have been omitted inadvertently, andii. Where all other methods of questioning have failed e.g. asking W to repeat, and

iii. May affect assessment and weight of that evidence.h. Examples where leave to lead may be granted

i. Witness is unlikely to be vulnerable e.g. expert (Gordon)ii. Circumstances dictate that expediency should override mere form of fairness (Gordon)

1. Leave (s 32(1)) a) s 192 2. Ability to recall ((2)(a)) 3. Written when fresh in memo

& accurate ((2)(b))

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iii. For the purpose of identifying person or things & directing attention of W to them (Maves)iv. Where a W is unable to answer questions put in the regular way, arising from defective

memory and requires prompting by a question suggesting the answer (Maves)v. Due to complicated nature of matter (Maves)

4. Judge should allow some leeway in XX (Wakeley)a. Judge should allow Counsel some leeway in XX so that counsel can perform their duty of testing

evidence given by an opposing W; limits of XX not susceptible to precise definition b. Until clear that Counsel is exercising discretion to XX improperly, court is in hands of XX-ing Counsel

5. Can lead in XX (s 42)a. (1) Leading qs can be put to W in XX unless court disallows or directs W to not answer b. (2) When allowing question, court may consider the extent to which (non-exhaustive):

i. (a) Evidence is unfavourable to party calling Wii. (b) W has an interest consistent with cross-examiner

iii. (c) W is sympathetic to party XX-ing generally or regarding a particular matteriv. (d) W’s age, mental or intellectual disability that might affect answers

c. (3) Court is to disallow or direct W to not answer if facts would be better ascertained without asking leading questions

6. Court must disallow questions or inform W that need not answer in XX if (s 41(1))a. (a) Misleading/confusingb. (b) Annoying, harassing, intimidating, oppressive, humiliating, offensive repetitivec. (c) Belittling or insulting d. (d) Stereotypese. (2) In disallowing, court may take into account, but not limited to:

i. (a) Relevant characteristic or condition of witness e.g. age, education, gender, language, maturity

ii. (b) Disabilityiii. (c) Nature of proceeding, offence, relationship between witnesses and other parties

f. (3) Question is not disallowable merely because it:i. (a) Challenges truthfulness, consistency or accuracy of statement made by w

ii. (b) Requires witness to discuss distasteful or private subjectg. (4) Party may object to a disallowable question

i. (5) Duty under s 41 is imposed on court whether or not objection is raisedh. (6) Failure to disallow or inform does not affect admissibility of answer given.i. Note: Person cannot print/publish disallowable question (s 195)

7. Party must give notice in XX of challenges to credibility by later evidence (B v D)a. Where XX will challenge veracity of evidence of W1 in a specific way, e.g. by calling W2 to contradict

a particular point, XX-er must raise that point with W1 (Brown v Dunn)i. This gives W1 a fair chance to elaborate on their story or call corroborating Ws and respond

to the attack (Birks)b. Consequences of failure to observe rule in B v D depends on circumstances of the case (Birks)

i. Preventing party from suggesting in closing that W should be disbelieved on points not raised (Birks)

ii. Excluding evidence adduced by breaching party (Payless Superbarn)iii. Permitting party to recall W and or additional Ws (e.g. s 46)iv. Permitting adverse comment/XX suggesting that breach is evidence of recent invention

(Robinson) (NB: use with caution)8. PIS Issues

a. There is a threshold question of law as to whether the evidence amounts to PIS (R v Wilson)i. PIS is where W’s previous representation is inconsistent with evidence given by W

(Dictionary)1. Previous representation: not made during proceeding (Dictionary)

a. Express/implied b. Oral/written; inferred from conductc. Not intended to be communication to or seen by anotherd. For any reason not communicated

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ii. Prior consistent statement is W’s previous rep that is consistent with W’s evidenceb. Function of adducing PIS

i. Leave to X on PIS in EIC to discredit own witness (s 38(1)(c))ii. PIS may be adduced in XX questioning as evidence that substantially affects credibility (s

103(1))iii. PIS may be lead in XX without leave, so long as s 103(1) is fulfilled (s 106(2)(c))iv. PIS relevant & admissible relevant to credibility (non hearsay purpose (s 60)) is admissible

for its hearsay purpose c. Requirements on XX

i. PIS (s 43) 1. (1) W may be XX-d on PIS made by W whether or not:

a. (a) The complete particulars of PIS are given to Wb. (b) Document containing of record of PIS shown W

2. (2) If W denies making PIS, counsel is not to adduce statement otherwise than from W unless:

a. (a) W has been informed of circumstances of making statement so they can ID statement

b. (b) W’s attention is drawn to inconsistencies between statement and the W’s evidence

3. (3) Party can re-open case to adduce PISii. Non-W who makes previous rep (s 44)

1. (1) XX-er cannot cross W on previous rep made by other persons (hearsay), unless (2)(a) evidence of rep has been admitted or (b) will be admitted (hearsay exception)

2. (3) Where a rep in a document will not be admitted, document must be used to question as follows:

a. (a) Doc must be produced to W b. (b) W must be able to listen to aural documentc. (c) W must be asked if they stand by the contents of the documentd. (d) XX cannot identify document or disclose any of its contents

3. (4) Doc so used may be marked for IDiii. Production of documents (s 45)

1. (1) Applies to document containing (a) PIS and (b) previous reps by other persons2. (2) If court orders or other party requests, party must produce (a) the document or

(b) evidence of contents of document3. (3) Court can (a) examine doc, (b) direct its use and (c) admit it4. (4) Does not make a inadmissible document under Ch 3 admissible5. (5) Production of document does not require XX to tender document

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3. Accused as a witness1. Right to silence

a. D not competent as W for P (s 17(2)b. AD not compellable unless tried separately (s 17(3)c. Comments on failure to give evidence

i. Comments on D’s failure - Privilege against self-incrimination (s 20(2))P J Co-D

Comment No Yes YesSuggest guilt No No Yes

1. ‘Suggests’ – wide (RPS)2. ‘Exceptional’ (Weissensteiner)

ii. Comments on failure of family (s 20(3))P J Co-D (s 20(4))

Comment Yes Yes YesSuggest guilt No No Yes

iii. J can comment on Co-D’s comment (s 20(5))d. Warning jury about drawing inferences (Azzopardi)

i. Is not evidence against accusedii. Does not constitute an admission against the accused

iii. May not be used to fill in gaps tendered by P iv. May not be used as make-weight to assess whether P has proved case BRDv. Jury to decide case on evidence led; cannot speculate on what D may have said

vi. Convey given purpose, not list all (Wilson)vii. Accused can only give sworn evidence (s 31 CPA)

2. Obligation to call material witnessesa. P must call all material witness (Kneebone)

i. TJ directions on P’s failure to call (Apostilides)ii. Set aside if miscarriage of justice (Apostilides)

iii. P decides which other Ws will be called, TJ not obliged to question reasons (Apostilides)P D

Obligation Yes (Kneebone) No (Dyers)J’s comments Yes (Apostilides) No (Dyers)

3. Further Rightsa. Presumption of Innocenceb. Fair Trialc. Right to Respond & Test Evidenced. P’s Burden: BRD

i. Pmust prove case on BRD (s 141(1))ii. D to prove case on BOP (s 141(2))

iii. Standard amplified in cases which use circumstantial evidence (Shepherd)iv. Legal Burden under Criminal Code (s 13.1 CC)

1. Pros to prove every element of offence relevant to guilty of person charged (1)2. Pros to also disprove any matter regarding what the D has discharged as evidential

burden of proof imposed on the D (2)v. Evidential burden under CC (s 13.3 CC)

1. D wishing to rely on any exception, exemption, excuse, qualification or justification provided by a law creating an offence bears an evidential burden (3)

2. D no longer bears evidential burden if the evidence sufficient to discharge burden is adduced by the Pros or court (4)

e. D’s right to opening address (s 159(2) CPA)i. (a) Matters in dispute and not in dispute raised by P’s opening

ii. (b) Matters raised by accusediii. Opening should only inform issues raised (R v MM)

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4. Powers of Court1. Granting Leave (s 192)

a. When is leave requiredi. Reviving memory in court (s 32)

ii. Leading questions in EIC/RE-X (s 37)iii. XX unfavourable witness (s 38)iv. Questioning in RE-X beyond matters raised in XX (s 39)v. To recall witnesses (s 46)

vi. XX of D on credibility only (s 104)vii. To lead cred evidence to rebut denial (s 106)

viii. Adducing evidence relating solely to credibility in re-examination (s 108)ix. XX of D on character matters (s 112)

b. Court must consider all of the following (2) – not exhaustive (Stanoevski v R)i. (a) Unduly increase or shorten length of the hearing,

ii. (b) Unfairness to a party or witness iii. (c) Importance of the relevant evidence, iv. (d) Nature of the proceeding, ANDv. (e) If court has power to give the direction re evidence

c. Court is to determine relative weighting to each matter in s 192(2) (Stanoevski v R)2. Inherent power to control conduct of proceedings (s 11)3. Powers to make orders re WQ (s 26)

a. Courts have expansive powers to make orders as to (s 26):i. The way witnesses are questioned

ii. The production and use of documents and things in connection with the questioning of witnesses; and

iii. The order in which the parties may question a witness; andiv. The presence and behaviour of any person in connection with the questioning of witnessesv. Note: s 26 does not enable court to give direction prior to hearing concerning question at

the hearing or controlling the evidence adduced at hearing4. Waiver of rules of evidence (s 190)

a. (1) Courts may, with parties’ consent dispense with:i. (a) General rules about:

1. Giving evidence (ss 26-36) 2. EIC/RE-X (ss 37-39)3. CX (s 40-46)

ii. (b) Documents/other evidence (ss 47-54)iii. (c) Rules dealing with admissibility, except relevance (Pt 3.2-3.8)

b. (2) Consent not effective unless: i. (a) D was advised by a lawyer

ii. (b) Court satisfied that D understands consequences of giving consent

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5. Logical Relevance1. What is the evidence?

a. FIIb. FII & Credibilityc. Credibility onlyd. Background evidence e. Previous rep (hearsay)f. Character of Dg. Tendencyh. Coincidencei. ID evidence

2. Is it logically relevant? (s 55)a. Only relevant evidence is admissible (s 56)b. Evidence with probative value (s 55(1))

c. Evidence relevant only to red, adm, failure to adduced evidence IS relevant (s 55(2))i. Relevant if W had knowledge beyond what jury could see for itself (Smith)

ii. Difference in accused’s appearance at time of offence, distinctive feature such as manner of walking

iii. Dressing accused as robber provides no info; prejudicial and not relevant (Evans)iv. Evidence of denials by accused not relevant (Graham)v. If evidence is of some albeit weak probative value, it is admissible unless some principle of

exclusion comes into play (Neal)vi. Man seen doing push ups but claimed weak left arm: not relevant to if assault happened, but

relevant to if it was done in the manner claimed (Spiteri)vii. In a case of murder/manslaughter for provocation, evidence indicating consciousness of guilt

consistent with murder is relevant (Sievers), but would be irrelevant to distinguish consciousness of guilt for murder or manslaughter (in dissent).

viii. Evidence of drug use during arrest is irrelevant to determine that accused was an illicit drug user 4 months prior (Merrit)

3. Is it provisionally relevant? (Circumstantial) (s 57)a. ‘Tiles in mosaic’ (Festa)b. Relevance from co-existence (Sutton)c. Cumulative weight eliminates innocence (Shepherd) d. Jury should be satisfied not only that circumstances are consistent with accused committing the

offence, but also that facts are inconsistent with any other rational conclusion (Hodge)i. Reiterates & amplifies P’s duty to prove BRD

ii. E.g. guilt is not the only rational inference, but it is the only rational inference that can be drawn from the circumstances (Shepherd)

4. Is it background evidence? a. Relationship (Clark; Conway)

i. Hostile relationship may be relevant to motive and likelihood of act (Clark)ii. Confined to specific incidents of the relationship (Conway)

b. Series of events (O’Leary)i. Evidence forming part of relevant transaction will itself be relevant (O’Leary)

1. O’Leary rule is not overridden by EA (Adam). 2. O’Leary does not say what constitutes a series of transactions

ii. Evidence that discloses a connected series of events form the ingredients of the transaction itself, or make intelligible a course of conduct pursued should be admissible (Conway)

iii. Evidence of a series of events does not demonstrate tendency, disposition, propensity or inclination, and no such direction should be given to the jury (Adam)

1. Assume reliabiility if accepted 2. Related FI

a) Element crime/def (ALRC)b) BNy itself/connected with

other fact (Goldsmith)

3. Has probative valuea) Assessment of probability of

existence of FII

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iv. Series of events can be broken by lapse of time1. Test is not length of time test, e.g. 5 mths is reasonably proximate for violent

relationship (Serratore)5. Is it a collateral issue?

a. Negligible significance (Goldsmith)i. E.g. Location of cricket pitch)

b. Attacking credibility

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6. Legal Relevance1. CL Exception: Res Gestae (Papakosmas)

a. Allows admission of otherwise admissibleb. Spontaneous statements by participants or observers c. Contemporaneous statements of mental/physical state of speakerd. RG evidence may be relevant for a hearsay and credibility purpose

i. Hearsay statements that are closely contemporaneous with alleged event could be considered a natural reaction and have PV therefore relevant (Papakosmas)

ii. If the contemporaneous statement is a consistent statement it can also support the credibility of the complainant

iii. Questions of fabrication (discretions and warnings) are not a consideration for threshold relevance, but are matters for exclusionary rules such as hearsay

2. Court can refuse evidence of admission adduced by P (s 90)3. Improperly obtained evidence may be excluded where PV substantially outweighed by impropriety (s 138) 4. Discretion to limit use (s 136)

a. (a) Prejudicialb. (b) Misleading/confusingc. Examples

i. Generally may limit for one purpose where evidence has more than one purpose: for example – may be admitted for bg, relationship, state of mind but not for propensity reasoning (O’Leary)

ii. Complaint relevant to credibility and whether sexual assault took place not limited by 136; was admitted as hearsay evidence under s 60 and opinion under s 77 (Papakosmas)

5. Discretion to exclude where PV substantially outweighed by [used by P] (s 135)a. (a) Prejudicialb. (b) Misleadingc. (c) Waste of time d. Definition: Substantially outweighed by the danger must be more than a mere possibility of danger,

must be a ‘real’ danger (R v Lisoff)e. Example: Document that should have been tendered a year earlier was excluded under s 135

because (Dyldam v Jones)i. Unfair prejudice to ptf if evidence were accepted without testing documents’ veracity (s 135

(a)); orii. Long adjournment may be necessary to allow ptf to examine doc (s 135 (c))

6. Mandatory exclusion of prejudicial evidence where PV outweighed by danger of unfair prejudice to D [used by D] (s 137)

a. Probative value: i. Extent that evidence can rationally affect the assessment of the probability of the existence

of FII (EA Dictionary)ii. Must be capable of supporting a guilty verdict (R v Shamouil) taken at its highest worth

(Carusi), rather than the weight/reliability/credibility of the evidence (Mundine)b. Unfair prejudice:

i. Weak probative value may be outweighed by the danger of unfair prejudice, that jury will make a decision of an improper and emotional basis rather than a logical basis (Evans)

ii. Unfair due to ‘real risk’ that jury may misuse evidence is some unfair way (R v BD) iii. Not merely because it increases likelihood of a conviction (Papakosmas) iv. Unfair where evidence is not logically connected with issues in the case (Lockyer)v. Examples of unfairly prejudicial evidence

1. Emotional basis : sympathies, sense of horror, instinct to punish, triggers of human action (ALRC)

2. Photo of burn injuries to victim, where drs testimonies already described injury = unfair prejudice (Barton)

3. Demonstration where apt was made to wear armed robber clothing to resemble video footage/photos (Evans)

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4. Evidence NOT admissible when explanation of evidence reveals prejudicial previous criminal offences related to charge (Cook)

c. Examples of balancing testi. Testimony of rape victim’s state of mind was prejudicial, but this prejudice did not out way

the high probative value and evidence should not be excluded (Preston) ii. V identifies apt out of 12 photos; only remembered that offender had goatee, and in photos

only one had goatee -– low probative value due to process of ID + danger of unfairness (Blick)

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7. Credibility1. Credibility evidence is not admissible (s 102)

a. Types – credibility of rep maker or W (Dictionary)i. Credibility of person who made a rep (exceptions to hearsay rule Div 3) – credibility of the

representation and the person’s ability to observe and remember facts and eventsii. Credibility of a W – W’s ability to observe and remember facts and events (specific and

further exceptions to the credibility rule)b. Credibility evidence includes (s 101A)

i. (a) Evidence going solely to cred 1. Prior conviction or prior dishonest conduct2. Veracity of witness, bias to a party, motives to lie, evidence of false representation

while under legal or moral obligation to tell truth3. Capacity to remember events4. Capacity to observe events5. Circumstances that affect accuracy of observations

ii. (b) Evidence going to cred and non-cred purpose for which it is not admissible1. PIS which goes to relevance, but does not fall within exceptions to the hearsay rule 2. Evidence relevant both to credibility and an FII but not admissible for the latter

should be subject to the credibility rule (ALRC re Adam)iii. Note: ss 60 (non-hearsay purpose) & 77 (non-opinion purpose) will not affect the application

of (b), because they cannot apply to evidence that is yet to be admitted.2. Party can introduce IAE re FII to contradict evidence of own W in EIC (Peacock)

a. Can introduce independently admissible evidence even if it has additional effect of discrediting witness (Peacock)

b. Rule does not prevent party from calling 2 witnesses who give inconsistent accounts (Weldon)c. Party is not prevented from submitting that the court should prefer one W’s evidence (Weldon)

3. XX on credibility a. Party can seek leave s 192 to XX discredit own W in EIC where W (s 38(1))

i. (a) Gives evidence that is unfavourable to party calling them, OR 1. Unfavourable when

a. ‘Not favourable’ (Souleyman)b. Untruthful and motivated by a desire to assist the opposing party (Spathis)c. Constitutes only part of a generally favourable testimony (Milat)d. Had ‘no memory of ‘a lot of things’ (Lozano)

2. Not unfavourable whena. Only because witness adds something to an earlier out-of-court statement

that is favourable to an opposition party (Spathis)b. Testimony does not conform the party’s case theory (Kneebone)c. Unfavourable evidence can emerge in XX of W by opposing party (Milat)d. Evidence does not have to be unexpectedly unfavourable (Parkes)

ii. (b) No genuine attempt to give evidence about a matter that they may reasonably be supposed to have knowledge about, OR

1. Untruthfulness is not a necessary precondition (Adam)2. The focus is on the reluctance to testify to W’s full ability, e.g. Attempting to

assist accused by concealing what W observed (Adam)iii. (c) Made PIS that is otherwise admissible

1. Is there independently

admissible evidence in EIC? (Peacock)

2. Is there an unfavourable W in

EIC (s 38)?AND

Does a specific XX exception apply?

3. Is there a specific exception?

a) s 103 XXb) s 106 XX NB rule in B v D & s 46 c) s 108 RE-Xd) s 108C Expe) s 110 D's Characterf) s 108A, B Prev rep of non-W

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[Note XX of PIS (s 43) & production of documents (s 45)]1. Where prior statement is contradictory or discrediting (Vocisano)2. PIS may be basis upon which court rules testimony unfavourable (Adam)

iv. (2) Can question unfavourable witness as though they are cross-examining themv. (3) Can only question re witness’s credibility, otherwise separate leave required (SEE s 192)

vi. (4) Questioning to occur before witness is XXed by other partyvii. (6) Matters court can consider when deciding to grant leave or give direction (non-

exhaustive):1. (a) Whether party gave notice at the earliest opportunity of their intention to seek

leave2. (b) Whether matter will be revealed in questioning by another party.

viii. Failure to consider implications of leave may result into improperly grounded grant of leave1. Even if W is unfavourable, shifting focus to collateral matters may create high risk of

prejudice to the accused (Hogan)2. Evidence arising from s 38 may be excluded for being unfairly prejudicial to D under

s 137 (Mordy)b. Finality Principle: Party can XX W on matters relevant to cred (s 103) , but CANNOT lead credibility

evidence (s 101A) i. Stops parties from leading evidence with only collateral relevance (Goldsmith)

ii. Finality principle does not prevent persistent questioning; focused on discrediting W in XX c. Evidence adduced in XX is a specific exception (s 103) ; W’s answer in XX in final

i. (1) CR does not apply to XX if evidence substantially affects assessment of credibility of W1. Substantial probative value is more than having a rational effect on the assessment

of credit (ALRC re RPS); should be given a ‘fairly liberal meaning’ (Fowler)2. Must have such potential that the credit of the witness cannot be determined

adequately without it (Lodhi)ii. (2)(a) Court must consider whether the evidence tends to prove that the witness knowingly

or recklessly made a false representation, andiii. (2)(b) The period that has elapsed since event occurred iv. Test of admissibility as to XX for credibility purpose is whether it tends to logically and

rationally weakens W’s trustworthiness (Shaw)v. Examples of subjects for XX under s 103

1. Bias or motive to be untruthful2. Opportunities of observation3. Reasons for recollection or belief4. Powers of perception and memory5. PIS [Note XX of PIS (s 43) & production of documents (s 45)]6. Internal inconsistences and ambiguities in testimony 7. Prior discussion about the facts of the case with other potential witnesses8. Previous lies by the witness; prior convictions/misconduct

a. Conviction must be sufficiently relevant to credibility (Fowler)b. If issue is sufficiently relevant to credibility, then conviction proved with

certificate (s 178(3))d. Exception to Finality Principle: putting evidence to W in XX to rebut denial with leave s 192 (s

106(1))i. Evidence can be led to disprove W’s denials concerning matters of credibility, if W’s credit is

inextricably involved with FII (Nicholls)ii. First, evidence must meet requirements of s 103 as capable of substantially affecting

assessment of credibility (ALRC)iii. Proof of collateral matters is allowed where PV outweighs time, cost and inefficiency (ALRC)iv. Examples of applications of s 106(1)

1. Other side calls bank manager to give evidence that W(being XX-d) made no bank transaction (Piddington)

2. Location of cricket arena is irrelevant to credibility, irrelevant (Goldsmith)

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3. Other side calls PO2 who claims PO1(being XX-ed) planted drugs on suspect previously and is therefore lying (McGoldrick)

v. (2) Exceptions where leave not required 1. (a) Is biased, has motive for being untruthful

a. Where W has motive to make untruthful statement to make trouble for the accused (Abebe)

b. D prepared to give false evidence to secure reduced sentence, made PIS to another person, however not admitted as the corruption did not ‘lay a proper foundation’ for its admission (Nicholls)

i. Bias: hostility/prej against party/favouring other party personallyii. Interest: specific inclination produced by relation b/w witness and

cause of actioniii. Corruption: conscious, false intentiv. Proper foundation: e.g. making sufficiently particular reference to

occasions and circumstances2. (b) Has previous conviction

a. Real issue is if prior conviction is sufficiently relevant to credibility to satisfy s 103; requires a genuine and substantial bearing on credibility (Fowler)

i. Assault, larceny, murder typically irrelevant to credibility (Fowler)ii. Traffic offences irrelevant (Bugg)

iii. Larceny. stealing, break and enter are typically capable of substantially affecting credibility (Burns)

iv. Drug offence may or may not have SBV depending on seriousness, when it occurred and penalty imposed (Davidson)

b. If issue is sufficiently relevant to credibility, then conviction proved with certificate (s 178(3))

3. (c) Has made PIS [Note XX of PIS (s 43) & production of documents (s 45)]a. Wife made PIS re husband’s guilt (Glasby)b. D prepared to give false evidence to secure reduced sentence, made PIS to

another person (Nicholls) i. Note rule of procedural fairness in Brown v Dunn

4. (d) Is/was unable to be aware of mattersa. Allows evidence of conditions to rebut W’s ability to be aware of matter e.g.

psych report showing histrionic condition - prone to lying (Souleyman)b. Relates only to ability to be aware, not (subsq) ability to recall e.g. effects of

prolonged drug use on memory (Galea) c. Note: s 108C permits experts to give evidence on credibility of witness

5. (e) Has knowingly/recklessly made false rep while under legal obligation to tell trutha. Broader than W has lied in same proceedings (AARA) (ALRC)

e. Party must give notice in XX of challenges to credibility by later evidence (B v D; s 46) i. Where XX will challenge veracity of evidence of W1 in a specific way, e.g. by calling W2 to

contradict a particular point, XX-er must raise that point with W1 (Brown v Dunn)1. This gives W1 a fair chance to elaborate on their story or call corroborating Ws and

respond to the attack (Birks)ii. Consequences of failure to observe rule in B v D depends on circumstances of the case

(Birks)1. Preventing party from suggesting in closing that W should be disbelieved on points

not raised (Birks)2. Excluding evidence adduced by breaching party (Payless Superbarn)3. Permitting party to recall W and or additional Ws (e.g. s 46)4. Permitting adverse comment/XX suggesting that breach is evidence of recent

invention (Robinson) (NB: use with caution)

4. W’s credibility may be rehabilitated by RE-X (ss 108, 39, 108)a. Limited bases for RE-X (ss 39, 108):

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i. Clarifying ambiguities surfacing from XX (s 39)1. E.g. where answer given in XX unless explained, leaves an unfavourable/distorted

impression of the facts or incomplete account of the truth (Hadid)ii. Enabling W to explain any issue relating to a party’s case that emerged in XX (s 39)

1. May only question on matters raised in XX (s 39(a)) a. Matter must not be mere confirmation or repetition of evidence given in EIC b. Can re-examine evidence initially inadmissible in EIC e.g. credibility evidencec. Not limited to matters relevant (only) to the credibility of the witness

2. Can only ask other questions only if leave s 192 given (s 39(b)) a. If matter could/should have been adduced in EIC, court may disallow leave

iii. Re-establish W’s credibility damaged in XX (s 108)1. Party cannot anticipate attack on W’s cred in XX by accrediting W during EIC

b. Leading question must not be put to W in RE-X unless leave s 192 given: (s 37) [See above] c. Party may lead evidence of PCS with leave s 192 to (s 108(3)):

i. (a) Rebut a prior admitted PIS [in RE-X]1. There is a discretion to limit use of PCS adduced (Papakosmas)2. Length of time may reduce the relevance and credibility of the PCS (Graham)

ii. (b) Rebut where there is/will be a suggestion of fabrication or re-construction [in RE-X/ EIC]d. When one party leads evidence from opposing W pursuant to s 106, opposing party will have

opportunity to X that W and rebut evidence of that under s 106 (ALRC) [XX]i. Rebuttal evidence may be adduced with leave s 192 in accordance with s 106

5. Opinion evidence by expert (s 108C)a. Party may call persons with specialised knowledge to give evidence on W’s credibility (s 108C(1)(a))

if evidence their opinion is: [in RE-X/ EIC]i. (b)(i) Wholly based on that knowledge, and

ii. (b)(ii) Substantially affects W’s credibility, and iii. (c) Court gives leave s 192

6. Non-W who has made previous rep (s 108A)a. Evidence relevant to the credibility of a non-witness who made a previous repthat has been

admitted may be allowed if the evidence substantially affects the assessment of that person’s credibility (s 108A)

b. Court must regard (non-exhaustive):i. If evidence tends to prove that the person knowingly/recklessly made a false representation

while under an obligation to tell the truthii. Period elapsed between act/event and making of rep

7. Re-opening P’s case (Chin)a. Reopening is distinguished from RE-X and is allowed at the court’s discretion to ensure fairness to

the accused [Note XX of PIS (s 43) & production of documents (s 45)]i. Rebuttal/reply evidence will not be allowed if Judge considers that P should have foreseen

the need for the evidence during the case and the evidence was admissible (Chin)ii. If P had no basis for foreseeing the need for the evidence until the defence case, Judge may

permit reopening and adducing of rebuttal evidence, e.g. to prove a defence witness’s PIS (Chin)

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8. PIS Issues

1. There is a threshold question of law as to whether the evidence amounts to PIS (R v Wilson)a. PIS is where W’s previous representation is inconsistent with evidence given by W (Dictionary)

i. Previous representation: not made during proceeding (Dictionary)1. Express/implied 2. Oral/written; inferred from conduct3. Not intended to be communication to or seen by another4. For any reason not communicated

b. Prior consistent statement is W’s previous rep that is consistent with W’s evidence2. Function of adducing PIS

a. Leave to X on PIS in EIC to discredit own witness (s 38(1)(c))b. PIS may be adduced in XX questioning as evidence that substantially affects credibility (s 103(1))c. PIS may be lead in XX without leave, so long as s 103(1) is fulfilled (s 106(2)(c))d. PIS relevant & admissible relevant to credibility (non hearsay purpose (s 60)) is admissible for its

hearsay purpose 3. Requirements on XX

a. PIS (s 43) i. (1) W may be XX-d on PIS made by W whether or not:

1. (a) The complete particulars of PIS are given to W2. (b) Document containing of record of PIS shown W

ii. (2) If W denies making PIS, counsel is not to adduce statement otherwise than from W unless:

1. (a) W has been informed of circumstances of making statement so they can ID statement

2. (b) W’s attention is drawn to inconsistencies between statement and the W’s evidence

iii. (3) Party can re-open case to adduce PISb. Non-W who makes previous rep (s 44)

i. (1) XX-er cannot cross W on previous rep made by other persons (hearsay), unless (2)(a) evidence of rep has been admitted or (b) will be admitted (hearsay exception)

ii. (3) Where a rep in a document will not be admitted, document must be used to question as follows:

1. (a) Doc must be produced to W 2. (b) W must be able to listen to aural document3. (c) W must be asked if they stand by the contents of the document4. (d) XX cannot identify document or disclose any of its contents

iii. (4) Doc so used may be marked for IDc. Production of documents (s 45)

i. (1) Applies to document containing (a) PIS and (b) previous reps by other personsii. (2) If court orders or other party requests, party must produce (a) the document or (b)

evidence of contents of documentiii. (3) Court can (a) examine doc, (b) direct its use and (c) admit itiv. (4) Does not make a inadmissible document under Ch 3 admissiblev. (5) Production of document does not require XX to tender document

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9. Hearsay

1. Hearsay Rule: Evidence of previous representation intended by a person is not admissible for a hearsay purpose (s 59(1))

a. Previous representation: not made during proceeding (Dictionary)i. Express/implied

ii. Oral/written; inferred from conductiii. Not intended to be communication to or seen by anotheriv. For any reason not communicated

b. Intended: i. (2A) To determine whether person reasonably intended to assert a particular fact by the

representation, court may regard circumstances in which the rep was made. ii. Test proposed by ALRC: intention may be inferred from external and objective

manifestations; investigation into subjective mindset not requirediii. Examples of unintended implied assertions

1. ‘Hello Daddy’ are not hearsay (ALRC on Walton, Hannes)2. Statements containing implied reps of involuntary conduct (O’Grady)

c. Hearsay purpose: to prove the existence of an asserted facti. (2) Asserted fact: fact reasonably asserted by that representation

ii. Non-hearsay purpose see s 60

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d. (3) Does not apply to evidence of a rep contained in a certificate / doc made under regs in an Act other than this Act where certificate / doc has evidentiary effect

2. HR does not apply to previous rep relevant to & admitted for a non-hearsay purpose (s 60(1) a. s 60 enables evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the

facts asserted, subject to controls provided by ss 135- 137 (ALRC)b. (2) Not limited to first hand hearsay: applies whether or not person who made representation had

personal knowledge of the asserted fact (saw, heard, perceived first hand defined in s 62(2))c. (3) Does not apply in a criminal proceeding to evidence of an admission .

i. Admission: a previous ‘representation’ that is made by a party t (a), and adverse to that person’s interest in the outcome (b) (Pt 1 Dictionary of EA)

ii. The admission may still be admissible under s 81 as an exception to the hearsay rule if it is “first-hand” hearsay: s 82.

iii. E.g. Leading evidence of previous rep that substantially affects credibility is allowed ONLY if there is an exception to the credibility rule (s 101A overruling Adams)

d. Examples of non-hearsay purpose:i. PIS relevant to the credibility of W - gets the whole statement in

ii. Establish state of recollection on a prior occasion (Nicholls)1. Confirm occasion of identification by X mark on the back of photo (Nicholls)

iii. Proving terms of an alleged agreementiv. Proving contents of alleged defamationv. Evidence of threats to prove person acting under duress

vi. Evidence of an alleged lie adduced to infer guiltvii. To show state of mind

viii. Drawing rational inference of intention, emotion or knowledge of or belief in facts assertedix. Prove person had facility to speak Englishx. Explaining origin of telephone call, the happening of which was being challenged (Leonard)

3. Examples applying the hearsay rule:a. Questions to ask when admitted previous rep: Why is the statement relevant, what is being adduced

and how will it be used to prove the matter (Subramaniam)b. Death threats prompting D to commit offence should have been admitted as they established fact

that statement was made, not its truth (Subramaniam) c. Transactional words used in police interview describing W’s participation in murder did not offend

first-hand hearsay rule; admissible as part of transaction (Suteski)d. Evidence of complaints of sexual assault shortly after assault admissible as went to FII (intercourse)

(Papakosmas)e. Translated evidence by interpreter is direct evidence (not hearsay) (Tsang Chi Ming v Uvanna)

4. Admissibility of hearsay exceptions are dependent on competency (s 61)a. (1) Hearsay exceptions inadmissible if rep maker not competent due to lack of capacity to

understand q about a fact or answer q, and incapacity cannot be overcome under s 13(1) b. (2) This section does not apply where person makes a contemporaneous representation about their

health, feelings, sensations, intention, knowledge or state of mind. (See s 66A)c. (3) Unless the contrary is proved, person who made representation is presumed to be competent

5. Documents and hearsay a. Where evidence is voluminous/complex, can adduce charts/summaries if court believes it will aid

comprehension (s 29; s 50)b. Copies, transcripts and testimony can take place of original doc as proof of evidence in doc (s 48)c. Can draw inference from docs as to origin and authenticity and/or deem document provisionally

relevant (ss 57, 58)

10. First Hand Hearsay Exceptions

1. First hand hearsay exceptions a. Exceptions to the hearsay rule allow evidence of a previous rep to be use for its truth value b. First-hand hearsay exceptions (s 59):

i. Where maker of the rep is unavailable (s 65) or available (s 66) [Crim only]20


ii. Contemporaneous statements about a person’s health etc (s 66A)2. Definitions

a. First hand hearsay: previous representation is made by a person who had personal knowledge of an asserted fact (s 62 (1))

i. Personal knowledge: 1. (2) Knowledge of the asserted fact based on something that they saw, heard or

otherwise perceived, other than a previous representation made by another person about the fact.

2. Personal knowledge indicated by short lapse of time, circumstances of conversation, words used “I....”(Vincent)

ii. Repeating information providing in another statement is not first-hand hearsay (Privett)iii. Must be able to identify the source of info with some precision (Harrington-Smith)iv. (3) For s 66A, representation about the person’s health, feelings, sensations, intention,

knowledge or state of mind at the time the representation is first hand hearsayb. Availability (Dictionary Cl 4 Pt 2):

i. (1) Unavailable: dead, not competent under s 16, mentally or physically unable, unlawful to give evidence, prohibited under EA from giving evidence, cannot locate person after all reasonable attempts at location, cannot compel them after all reasonable attempts

ii. (2) Available: in all other cases, person taken to be available iii. Examples – is maker of representation ‘unavailable’?

1. Refusal to testify - Yes (Suteski)2. Non-English speaker - No (Morton)3. Accused for P - No 4. Accused where D Xs P’s W- No (Parkes)

3. HR does not apply to contemporaneous statements about a person’s health, feelings, sensations, intention, knowledge of state of mind (66A)

a. Only justifiable if there is reason to think the evidence is reliable (ALRC 102)b. Allows reps identified under s 66A to be used as evidence of person’s health etc (Hannes)c. Must satisfy relevance test under s 55.d. E.g. Evidence of accessory’s suicidal feelings (in the form of previous reps by Ws) was admissible to

support that it was more likely that the apt rather than the accessory was the killer (R v Yeo)e. Admitting evidence under s 66A for another purpose

i. Evidence admitted under s 66A must be such that could rationally affect the assessment of the probability of the existence of a FII. (ALRC 102)

ii. Provided relevant requirement is made out, evidence admitted under s 66A will be admissible as evidence of any FII (ALRC 102)

f. Examples applying s 66Ai. V statements to family that she was intending to break of relationship with D but D making it

difficult (Serratore)ii. V statements to others that she feared D’s use of knives (Lock)

4. First hand exceptions where maker is not available (s 65(1)):a. (2)(a) Made under duty to make that representation or reps of that kind, orb. (b) Made when or shortly after asserted fact occurred and in circumstances making it unlikely that

the rep was fabricated , orc. (c) Made in circumstances that make it highly probable that rep was reliable ord. (d)(i) Against interests of maker at the time, AND (ii) made in circumstances that make it likely that

the representation was reliablei. (7) Against interests where it tends to show:

1. (a) Damage the person’s rep, or 2. (b) Show that person committed offence for which they have not been convicted, or3. (c) Show liability in action for damages

ii. Each statement must be examined in order to determine if it is against interests (Suteski)iii. E.g. statements implicating joint criminal enterprise (Kirby in Suteski)

e. Definitions re s 65i. Shortly after: Strict contemporaneity, not same as ‘fresh in memory’ (Williams v R)

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ii. Fabricated: 1. ‘Made up’, therefore innocent maker in recollection is not a fabrication (R v

Polkinghorne)2. Extends to a person reconstructing events, even if intention is not to ‘make up’ what

happened (R v Kuzmanovic)iii. Circumstances:

1. Broad: Any circumstance relating to rep (Lock; Dean)2. Narrow: Focus should be on circumstances of making the rep, AT THE TIME to

determine whether it is likely that the rep was a fabrication (Mankotia).3. Middle: Prior or later statements/conduct of person making rep only to be

considered tot eh extent they touched the reliability of the circumstances of making of rep (Ambrosoli)

a. Evidence tending only reliability of fact to be excluded (Ambrosoli) b. However, evidence of events other than those leading to the making of the

rep may still throw light on circumstances (Ambrosoli)c. E.g. Genuine retraction by maker, or evidence showing person making rep

was incapable f. Where evidence of previous rep is made in the court of a proceeding (s 65(3))

i. (3) Hearsay rule does not apply to evidence of previous rep made the course of giving evidence in a proceeding if, in that proceeding the D:

1. (a) Cross-examined the person who made the rep about it; or2. (b) Had reasonable opportunity to XX person who made the rep

ii. Note: 1 Section 67 imposes notice requirements relating to this subsection. iii. (4) If there is >1 D, evidence of a previous rep made in a proceeding admitted via (3) cannot

be used against a D who did not XX and did not have reasonable opportunity to CX the person about the rep

iv. (5) D taken to have had reasonable opportunity to XX if the D was not present when CX of person might have been conducted but (a) could reasonably have been present and (b) if present could have XXed the person

v. (6) Evidence of making a rep to which (3) applies may be adduced by producing a transcript or recording of rep that is authenticated by:

1. (a) Person to whom, or the court or other body to which rep was made; or2. (b) Registrar or other officer of court or other body to which rep was made; or3. (c) Person or body responsible for producing transcript or recording

g. (8) Hearsay rule does not apply to rep adduced/tendered by D if: i. (a) Evidence is first hand hearsay, or

ii. (b) If the document containing the first hand rep, or another rep is reasonably necessary to understand the representation

iii. Note: 1 Section 67 imposes notice requirements relating to this subsection.h. (9) If evidence of a previous rep about a matter has been adduced by D and admitted, hearsay rule

does not apply to evidence of another rep about that matter that is:i. (a) Adduced by another party, and

ii. (b) First hand hearsay

5. First hand exception where maker is available (s 66(1)), and rep made while fresh in the memory (2) a. (2A) When deciding ‘fresh in memory’, court may take into account all relevant matters, including

i. (a) Nature of event, andii. (b) Age and health of person, and

iii. (c) Time gap between occurrence and making of the representationb. Fresh in memory: Recent/immediate; describes the temporal relationship between the occurrence of

the asserted fact and the time of making the rep (Graham)i. Reps within minutes or hours of the event Fresh (Papakosmas)

ii. Reps made 6 yrs laters Not fresh (Graham)c. (3) Where rep was made for the purpose of indicating evidence to be used in proceeding, (2) does

not apply to evidence of rep adduced by P, unless the rep concerns a person’s ID, place or thing

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i. E.g. reps made by Ws to police shortly after incident to reps (Saunders)d. (4) Document containing representation to which (2) applies must be tendered after EIC of maker

unless court gives leave

6. Notice requirements (s 67)a. (1) s 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply unless party has given reasonable notice in

writing to each other party of intention to adduce the evidence.b. (2) Notices to be given in accordance with any regulations or rules of court c. (3) Notice must state:(a) provisions of this division (b) for s 64(2) the groundsd. (4) Despite (1), court may, on application of a party, direct that one or more of those (5) subsections

is to apply despite the party’s failure to give notice.

11. Remote Hearsay Exceptions

1. Exception: Business records that satisfy the personal knowledge requirement (s 69; R v Cassar)a. Business records

i. (1) Documents that form or formed part of records kept for business purposes (a) that contain a previous rep made or recorded in the doc, in the course of a business (b)

ii. Business: defined expansively (Newtronics), includes commercial enterprises, gov, police, hospitals and courts

b. Personal knowledge requirement (s 69(2))i. (2)(a) Person reasonably supposed to have had personal knowledge of the asserted fact, or

1. (5) Personal knowledge where knowledge might reasonably be supposed to have been based on what their saw, heard or perceived (other than a previous rep made by a person about the fact)

ii. (b) On the basis of info directly/indirectly supplied by someone reasonably supposed to have had personal knowledge of the asserted fact

iii. (3) Exception to (2) : Hearsay rule WILL apply to business records where at the time the doc was created, legal proceedings reasonably anticipated and document made in contemplation for this purpose.

c. (4) Exception exists where empty record shows that event did not happen2. Exception: Contents of tags, labels and writing (s 70)

a. (1) Hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (incl. doc) if the tag/label/writing may reasonably be supposed to have been so attached or placed:

i. (a) In the course of a business; andii. (b) For the purpose of describing or stating ID, nature, ownership, destination, origin or

weight of the object or its contents 3. Exception: Electronic communications (s 71)

a. (1) Hearsay rule does not apply to a rep contained in a doc recording an electronic communication so far it is a representation of:

i. (a) ID of the person from whom or on behalf the communication was sent; orii. (b) Date or time of communication; or

iii. (c) Destination of communication or ID of person to whom communication was sent 4. Exception: ATSI Traditional laws and customs (s 72)5. Exception: Reputation as to relationships and age (s 73)

a. Hearsay rule does not apply to evidence of reputation re marital status, age or family relationship/ history

b. (2) D can only invoke (1) if used as rebuttal evidence or D has given reasonable notice of intention to adduce evidence

c. (3) Pros can only invoke (1) if used as rebuttal evidence6. Other Exceptions

a. Reputation of public or general rights (s 74) b. Use of evidence in interlocutory proceedings (s 75) c. Admissions (s 81) – see aboved. Representations about employment or authority (s 87 (2)) e. Exceptions to the rule excluding evidence of judgments and convictions (s 92 (3))

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f. Character of and expert opinion about accused persons (ss 110 and 111).

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12. Accused/Co-accused’s Character

1. Evidence adduced by D to prove good character is not subject to hearsay, opinion, tendency, credibility rules (s 110(1))

2. Evidence of opinion about D adduced by Co-Accused is not subject to hearsay and tendency rules (s 111(1)(a)) if substantially based (c) on specialised knowledge of Co-Accused (b).

3. Directions on Character Evidence4. Evidence adduced by D to prove good character is not subject to hearsay, opinion, tendency, credibility

rules (s 110(1))a. If evidence of good character adduced by D, exclusionary rules do not apply to evidence adduced by

other party that proves D is NOT of good character (2) generally/(3) in a particular respectb. Evidence adduced by a D

i. D must adduce evidence with a positive intention to prove that they are of good character (Bartle)

ii. ‘Responsive’ emphatic denials NOT adducing character evidence (Gabriel)1. Intention may still exist if there is a ‘non-responsive’ answer that amounts to more

than an emphatic denial of guilt (Skaf)iii. Harder for P to convince judge that it was positively raised if P limits manner of D’s response

as a result of the preliminary context (Bartle)5. Evidence of opinion about D adduced by Co-Accused is not subject to hearsay and tendency rules (s 111(1)

(a)) if substantially based (c) on specialised knowledge of Co-Accused (b).c. Co-accused not limited by evidentiary restrictions placed on P by UEAd. If evidence admitted, hearsay/opinion/tendency rule do not apply to evidence adduced to prove

that the evidence should not be accepted (s 111(2))6. Directions on Character Evidence

e. No obligation on judge to direct the jury concerning the accused’s good character (Melbourne)i. Preferable to leave discretion with judge as to whether direction on evidence of good

character should be given, after evaluating its probative significance and credibility (Melbourne)

f. Desirable to give direction as to the use to which evidence should be put (RJC)i. But no particular form of words is necessary (RJC)

1. LEAVE s 192 required to XX about character of accused or co-accused (s 112; Azzi) a. Decision to grant leave to XX D about character is only triggered when D adduces evidence of good

character under s 110 b. Factors relevant to leave under s 112: (Gabriel)

i. Relevance of proposed rebuttal evidence to character claimed by Dii. Role of P in opening up question of character

iii. Stage of trial at which character raisediv. Whether or not counsel for D had determined not to raise characterv. Whether any warning given by P or court that adducing evidence of good character might

entitle P to adduce rebuttal evidencevi. Comparison of probative value of rebuttal evidence with unfairly prejudicial tendency

2. LEAVE s 192 (2) required to XX D who is a W as to credibility (s 104(1))a. (3) EXCEPTIONS to requirement of leave where XX about whether the D:

i. (a) Is biased or has a motive to be untruthful, or ii. (b) Is not aware of/cannot recall matters, or

iii. (c) Has made a PIS [Note XX of PIS (s 43) & production of documents (s 45)]b. (4) Leave must not be granted to P under (2) unless D adduces evidence that has been admitted:

i. (a) Proving W called by P has a tendency to be untruthful, ANDii. (b) Is relevant solely or mainly to the witness’s credibility

c. (5) Evidence adduced in (4) Does not including evidence of conduct relating to:i. (a) Events in relation to which D is being prosecuted, or

ii. (b) Investigation of offence for which D is being prosecutedd. (6) Leave must not be granted to another D unless:

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i. (a) Evidence that D to be cross-examined has given includes evidence adverse to the other D seeking leave to XX and

ii. (b) That evidence has been admittede. Examples: P sought to XX accused, who was charged with drug offences, about prior conviction for

corruption; held prejudicial but highly probative (El-Azzi)i. Prejudice somewhat diminished by different nature of prior conviction from current charges

ii. Decision re: s 104 made in light of fairness considerations to both the accused and the Crown

iii. But not every case warrants a s 104 XX2. LEAVE s 192 (2) required to admit previous rep of a non-W accused, relating to credibility (s 108B)

a. Mirror of s 104 [see above]

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13. Tendency & Coincidence Evidence

1. Inferences about tendency and coincidence are impermissible unless allowed by ss 97, 98 and 101a. Reference to doing an act includes a failure to do that act (s 96)b. If jury can find tendency evidence BRD, P may use it as coincidence evidence as well

2. Applications of this Parta. This part does NOT apply to (s 94):

i. (1) Evidence relating to credibilityii. (2) Proceedings related to bail or sentencing

iii. (3)(a) Character, reputation or conduct of a person; or (b) tendency where it IS a FIIb. Use of evidence for other purposes (s 95):

i. (1) If the evidence is not admissible to prove a particular matter in this Part, then it must not be used to prove that matter, even where it is relevant for another

ii. (2) Evidence that is not admissible under Pt 3.6 to be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose

3. Tendency rule (s 97)a. (1) Evidence of character, reputation or conduct, or tendency that a person has or had is not

admissible to prove they had/have a tendency to act in a particular way or have a particular state of mind or would have acted in a similar way in the current situation, unless:

i. (a) Party seeking to adduce gave reasonable notice in writing of intention to adduce, AND1. Notice given under ss 97 and 98 must follow rules of court (s 99)

ii. (b) Court thinks evidence will, by itself or having regard to other evidence, have significant probative value (SPV)

1. Significant probative value: more than mere relevance; less than a ‘substantial’ degree of relevance; ‘important’ or ‘of consequence’ (Lockyer)

2. Court to assess if it is open to find that evidence has SPV; looking forward (Dao)3. SPV determined by considering:

a. Other evidence adduced or to be adducedb. Whether tendency evidence is disputedc. Whether tendency evidence refers to a critical fact (there will be a higher

standard for tendency evidence to satisfy if it refers to a critical fact)d. Time gaps – when the other conduct occurred; previous conduct may be

more meaningful than subsequent; very old conduct may be of low probative value

e. Number of incidents establishing tendencyf. Degree of similarity between incidents and circumstances and eventsg. Whether evidence discloses unusual features or an underlying unity or

patternh. Strength of inference drawn from the tendency in relationship to the FIIi. Extent to which that tendency increases the likelihood that a FII did, or did

not, occurj. Whether evidence is adduced to explain or contradict tendency evidence

adduced by another party (ss 97(2)(a) and 101)iii. (2) Notice not required if:

1. (a) Evidence adduced in accordance with court directions under s 100 a. Court dispense with notice requirements on application (s 100)

2. (b) Evidence adduced to explain or contradict tendency adduced by other partyb. Tendency evidence should be treated as no more than a ‘stepping stone’ to provide foundation for

making an inference that person behaved in a particular way/has particular state of mind (Dao)c. Separate events must be similar and logically connected to be used as tendency evidence (Watkins)

i. @CL: Phrases e.g. ‘Striking similarities’, ‘underlying unity’, ‘a strong degree of probative force’, ‘a real nexus’ may offer some interpretive guidance about the relationship between evidence and FII (Hoch)

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ii. E.g. Links regarding different counts of break, enter and steal admissible with respect to other counts (Ellis)

d. Drawing inferences from tendency evidence i. Inferences drawn from tendency evidence need not be drawn BRD before the tendency

evidence could support a finding of relevant intention (Joiner)ii. Tendency evidence must establish a pattern of behaviour (Fletcher)

1. Tendency evidence that seeks to prove a pattern of behavior must all be similar in nature; the tendency evidence will fail to prove a pattern of behavior if the tendency evidence shows significant differences in behavior (Jacara)

iii. E.g. Accused’s argument with wife leading to him pushing her with hand against throat supported inference of intentional violent response to minor irritation (Joiner)

e. Knowledge of a victim’s history not necessary in utilizing tendency evidence (R v Cakovski)i. Tendency evidence can still be adduced by the D if he was unaware of a victim’s history at

the time the D committed any alleged crimesii. Tendency evidence is still admissible if it is remote and lacks circumstantial detail as long as

it has significant probative valueiii. Tendency evidence tendered by P does not require ‘probative force’ required by s 101

f. Tendency and Relationship Evidence (R v Li)i. s 97 is directed at evidence showing a tendency to “act in a particular way” in addition to

showing a tendency to commit a particular crimeii. It is unnecessary to prove the accused had committed a similar act in the past, tendency

evidence only has to show that the accused had a tendency to do a particular actiii. Merely because an accused has done a particular act before it is not safe to assume, without

prejudice, that he would do the same act againiv. Clear judicial instruction to jury on limited use of relationship evidence; ‘full story’ may need

to be limited so that jury understands evidence relevant to the offence (McNamara)4. Coincidence rule (s 98)

a. (1) Evidence of 2 or more similar events that occurred or acts committed cannot be admitted to prove a particular act was not similar by mere coincidence unless:

i. (a) Party seeking to adduce evidence gives reasonable notice in writing to each other party of the party’s intention to adduce, and

1. (2) No written notice required if a. (a) Evidence adduced in accordance with directions under s 100, orb. (b) Evidence adduced to explain/contradict coincidence evidence adduced

by another party.b. (b) Court thinks that evidence will, either by itself or having regard to other evidence adduced or to

be adduced, have significant probative value c. Coincidence rule is applicable to:

i. Events that occurred in similar circumstances or are similar in nature (Watkins)ii. To prove that person in question did a particular act or had a particular state of mind

iii. ‘Two or more events’ includes the event in question in the proceeding (ALRC 102)d. Relevant inclusions in s 98 Notice (R v Anna Zhang):

i. Identify 2 or more related events the subject of the proposed evidence; andii. Identify person whose conduct or state of mind is the subject of proposed evidence; and

iii. State if evidence to be tendered to prove that person did particular act, and, if so, what that act is; &

iv. If evidence to be tendered to establish that that person had a particular state of mind, and, if so, what that state of mind is

5. Balancing test: PV must substantially outweigh prejudicial effect (s 101) a. Balancing exercise must be engaged in whenever tendency or coincidence evidence is sought to be

adduced against D (Ford)b. Must be done on the specific facts of each case (Ellis)c. (1) s 101 only applies in a criminal proceeding and applies in addition to s 97 and s 98 d. (2) Probative value of the tendency/coincidence evidence adduced by P must substantially outweigh

any prejudicial effect it may have on the D for it to be usable

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i. Substantially: No precise extent of “substantial”, can mean “real” or “of substance”; “large”, “weighty” or “big”; can be used in a relative sense (Fletcher)

ii. Outweigh: where in the interests of justice, admission of the evidence is required despite the risk of an unfair trial (Pfennig)

iii. Prejudicial effect: understood in same way as ‘unfair prejudice’ under s 137, but with more emphasis on how evidence may, rather than will impact adversely on D (Lock). E.g:

1. Jury may be inclined to punish conduct not subject to charge in current proceedings2. Jury may overestimate probative value of evidence3. Jury may be distracted from central issues in trial4. Jury may too readily accept evidence or other evidence against the accused

e. (3) s 101 does not apply to:i. Tendency evidence that P adduces to explain or contradict tendency evidence adduced by D

ii. (4) Coincidence evidence that P adduces to explain or contradict coincidence evidence adduced by D

f. Evidence adduced showing previous criminal acts may bear upon question whether of whether acts allegedly constituting the crime in question was designed or accidental, or to rebut a defence which would otherwise be open to the accused (Makin v AG – baby case)

g. Evidence not used for tendency/coincidence may be excluded if prejudicial under ss 135 or 1376. Examples of tendency or coincidence

a. D injuring children previously had SPV re injury to deceased tendency (Lockyer)b. Person in institution after strangulation murder escapes, day after escape local girl found murdered

by strangulation tendency and coincidence (Straffen)c. Account charged with defrauding by depositing company cheques into own account; some 20 yrs

earlier was guilty of larceny after cashing cheques into own account (Watkins)i. No tendency due to dissimilarities and time; no logical connection between events

ii. No coincidence as there were different types of fraud and circumstances

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14. Opinion Evidence

1. Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed unless (s 76(1))

a. Opinion is a summary (or are summaries) of voluminous or complex documents (s 50(3))b. Evidence relevant otherwise than as opinion evidence (s 77)

i. If utilised to explain perceptions about phenomena driving conduct - admissible (ACCC v Real Estate)

ii. Investment advisor’s evidence that he would not have recommended client to purchase debentures had he been aware of some matters – admissible as it was not tendered to prove fact about which opinion was expressed (Allstate Life)

iii. NB: if admitted under s 77, ss 136 & 136 discretions will apply (Roach)c. ATSI traditional laws and customs (s 78A)d. Expert opinion (s 79)e. Admissions (s 81)f. Character of and expert opinion about accused persons (ss 110 & 111)

2. Distinguishing between fact and opiniona. @CL: Opinion is evidence of a conclusion, usually judgmental or debatable, reasons from fact

(Krupp)b. UEA : Opinion rule is irrelevant to evidence from a W of what they would have done in a hypothetical

situation (Allstate)c. Examples

i. E.g. Man identifying wife’s age – fact; strange estimating age - opinion (Leung and Wong)ii. Photo showing unique feature not apparent to jury, or if accused had altered appearance -

fact (Smith v R)iii. Recounting observations that bongs used to consume cannabis – fact (Barker)

3. Lay Opiniona. Lay person’s opinion evidence ONLY acceptable if it is (s 78; Partington v R):

i. Based on W’s first-hand knowledge of event; andii. W has formed opinion based on what they saw, heard of otherwise perceived, and

1. W must have been eyewitness to event (Lithgow Council v Jackson)iii. W’s opinion is necessary to understand their perception

b. Applying s 78 i. Should be construed broadly (Idoport)

ii. Should be construed as requiring a rational basis for opinion before being admitted (Panetta)

iii. If opinion and actual perception of event are concurrent/the same should apply test of relevance to evidence and ask if evidence is necessary to obtain account of perceptions

c. General, broad lay opinions allowed @CL (Mazzone):i. State of the weather

ii. Physical condition of objectsiii. Estimates of speed and distanceiv. A person’s general health/emotional statev. A person’s age

vi. Authorship of a document where handwriting is familiarvii. Identity

viii. Person’s attitude or state of mind (Von Einem)ix. Whether relations between people are friendly or unfriendly (Von Einem)x. Sobriety or drunkenness (Aldridge)

d. Specific opinions allowed @CL (more liberal approach to s 78):i. Ptf’s opinion that she would not have fallen had step been different depth (Taber)

ii. D used to look at girl with ‘look of wanting’ – admissible to describe D’s facial experience when in company of young girls (Van Dyk)

iii. W seeing ‘look of sexual gratification’ on accused’s fact in presence of complainant – satisfied s 78, but excluded under s 137 (Harvey)

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iv. Before lay W could give opinion of speed of car, opinion was required to be rationally based (Panetta)

4. Expert opinion evidence (s 79)a. Expert opinion evidence @CL:

i. Given by an ‘expert’, on matter within their expertise ii. Taken on a factual, observational basis

iii. Assists the fact finderiv. Does not testify about common knowledgev. Does not trespass on the ultimate issue (e.g. determining dr’s negligence)

vi. Evidence from W with particular skill on a subject matter of inquiry such that inexperienced persons are unlikely to prove capable of forming a correct judgment on without assistance (Clark v Ryan)

b. Requirements for the admissibility of expert opinion evidence (s 79)i. Specialized knowledge

1. Not PO identifying persons through photos (Smith)2. More than subjective belief or unsupported speculation (Tang)3. Confined to specialized knowledge to avoid risk of illegitimately inferring facts

outside field with spurious appearance of authority (HG v The Queen)4. Expert must explain how opinion is based on the field of particular specialized

knowledge and how they apply to the facts assumed (Makita v Sprowles)a. Not reflected in EA (Red Bull)b. CL rule is not absolute, e.g. the Federal Court does NOT require the

disclosure of factual basis for opinion under most circumstances (FC Practice Note CM 7)

5. Can be ‘ad hoc’ expertsa. Familiarity - prior contact (Smith)b. Experience - repeatedly hearing voice of accused in recordings so they can

identify accused (Leung and Wong)c. Observations – ‘Poor quality’ CCTV (Li)

ii. The specialized knowledge has to be based on training, study or experience1. Specialized knowledge must be identified with precision and it must be

demonstrated that opinions are strictly referable to that knowledge:a. Psychologist may express opinion on human behavior general but not why a

particular person would lie in particular situation (Quesada)b. Accountant’s opinion on accountancy practice admissible but opinion about

competent company directorship was not (Australian Cement)c. Dr permitted to give opinion about cause of injury, not whether they were

inflicted intentionally (Lee)iii. Opinion has to be wholly or substantially based on specialized knowledge

1. Must also have factual AND observational basis, i.e not based solely on specialized knowledge (Velevski)

2. Under s 79 can still have regard to matters within knowledge of ordinary persons in formulating opinion

c. Reliability and validity of expert evidence i. Reliability forms part of the admissibility standard for expert opinion evidence (HG)

ii. However, another view is that the focus of attention must be on ‘specialized knowledge’, not on introduction of an extraneous idea such as reliability (Tang)

iii. Expert evidence should be treated like lay evidence and ‘take it at its highest’ when determining probative value (opinion in Tang)

d. Factors that may influence discretionary exclusion (and weight) of expert evidence i. Reliability

ii. Whether the facts on which the opinion based have been proved (or supported or are credible)

iii. Whether the expert has considered all relevant factorsiv. Standing (or reliability) of a field or discipline

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v. Extent of formal training, study and experiencevi. Standing of the individual expert

vii. How well a position is supported in a field or its literatureviii. Clarity of reasoning and transparency of approach

ix. The expert’s previous performancesx. The other types of expert opinion available and the extent to which specialized knowledge is

requiredxi. The number of experts involved

xii. The scale of the litigationxiii. The ‘side’ on which the expert usually appearsxiv. Importance of the evidence

e. Qualifying the expert i. Peer recognition in disciplines generally guarantees court recognition of expertise, unless W

lacks necessary expertise on particular topic within general specialty (Blackwell)1. Opinion must be derived from recognized ‘field of expertise’ (R v Bonython)

ii. Experts’ code of conduct can be found in:1. SC Rules 1970 (NSW)2. FC Practice Note CM 7

iii. SC Rules 1970 (NSW) for criminal proceedings (Div 1, Rule 3J (3)):1. (a) The expert must be provided with a copy of the code of conduct as soon as

practicable after the expert has been engaged to provide oral or a written report for use as evidence; and

2. (b) Unless an expert witness’s report contains an acknowledgement by the expert W that they have read the code and agrees to be bound by it:

a. (i) Service of the report by the party who engaged the expert witness is not valid service for the purpose of the rules or of any order or practice note; and

b. (ii) Report is to not be admitted into evidence; and3. (c) Oral evidence is not be received from an expert witness unless:

a. They have acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that they have read code and agree to be bound by it; and

b. Copy of the acknowledgement served on all parties affected by evidencef. SC Rules (NSW) for criminal proceedings - conference between experts:

i. (1) The Court may do any or all of the following, with parties’ consent:1. (a) Direct expert Ws to confer (whether before or during a trial or other

proceedings) (1)(a)2. (b) Specify matters on which they are to confer 3. (c) Direct that they provide Court with a joint report specifying matters agreed and

matters not agreed and the reasons for any non agreement ii. (3) Content of the conference between the expert witnesses is not to be referred to at the

hearing or trial unless the parties affected agree iii. (4) Parties may agree, at any time, to be bound by agreement on specified matter… iv. (5) Where, pursuant to this rule, expert Ws have conferred and have provided a joint report

agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed

g. Lay evaluation of expert opinion i. Current scientific evidence may expose earlier miscarriages of justice where original expert

evidence inadequate or flawed (Button)1. Court could consider fresh forensic evidence

ii. Juries can resolve conflict between experts (Velevski)1. Simply because there is conflict in sophisticated evidence, resolution should not for

that reason alone be regarded as having been beyond jury’s capacity to resolve (Velevski)

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15. Identification Evidence

1. Definitiona. Identification evidence (Dictionary)

i. (a) An assertion by a person that D was at or near a place where 1. (i) Offence was committed; or2. (ii) Act connected to that offence was done,

ii. (b) A report of an assertion in (a)b. ID evidence may be opinion or fact

i. If fact, classified as direct evidence ii. If opinion, the close familiarity of the witness to accused regarded as specialized knowledge

based upon experience (Leung): s 79 broad enough to accommodate concept of ad hoc expert

iii. Blurry boundary (Marsh)c. Overrides credibility rule via exception (s 108C) : evidence of opinions of persons with specialised

knowledge (even ad hoc expert) (s 79)2. Relevance of ID evidence (s 55)

a. Yes extensive observations to identify distinctive characteristics3. Visual identification evidence inadmissible (s 114(2))

a. (2) 3 exceptions:i. (a) Identification parade held before identification was made; OR

ii. (b) Not reasonable to hold the parade ; ORiii. (c) The D refused to take part in such a parade; ORiv. AND identification made without person who made it having been intentionally influenced

to identify the Db. Visual identification: based wholly or partly on what a person saw, not including picture

identification evidencec. Reasonableness in holding parade

i. Non-exhaustive list of considerations: (s 114(3))1. (a) Kind of offence, gravity of offence2. (b) Importance of the evidence3. (c) Practicality of holding identification parade, including:

a. (i) If D failed to cooperate in conduct of parade – to the manner and extent of, and the reason for the failure

i. Including whether the D stipulated that they would only participate if a lawyer/other 3rd party was present (5)

b. (ii) To whether the identification was made at or about the time of the commission of the offence

4. (d) The appropriateness of holding an identification parade having regard to the relationship between D and person who made the identification

ii. Presumed to not be reasonable if it would be unfair to D for parade to be held (s 114(4))iii. Other considerations

1. Availability of suitable ‘foils’ at the time parade could have been held (Smith)2. Whether appearance of D had changed significantly between time of offence and

time at which parade could be heldiv. NOT to be taken into consideration

1. Court is not to take into account the availability of pictures or photographs that could be used in making identifications (6)

d. Methods of Visual Identification i. Properly conducted identity parade (most reliable)

ii. Video recorded identificationiii. Identification in a crowdiv. Identification outside or close to a courtv. Identification where the suspect is in company of the police

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vi. Identification where the suspect is alonevii. Subsequent identification after identifier sees suspect in the media or from previous

identification attemptsviii. In dock identification (least reliable, most prejudicial)

e. Examples of ID evidence :i. Evidence from POs identifying person in security photos (Smith)

ii. Description of offender given by the victim and evidence about the circumstances in which the appellant was intro-ed to victim (Trudgett)

iii. In court identification of the offender by a witness (Taufua)iv. Evidence from a facial mapping ‘expert’ (Murdoch) v. Statements made by victim to his work colleagues that he had been assaulted by D whom he

recognised because they had been at primary school together (R v D)vi. Evidence of an eyewitness to a shooting that the accused (with whom she was familiar) was

not one of the men that she had seen (Kanaan).4. Picture Identification Evidence adduced by P is inadmissible if (s 115):

a. (2) Pictures suggest that the accused was in police custody b. (3) D is in police custody in relation to the offence and the picture was made before person was

taken into custody UNLESS D’s appearance has changed or it was not reasonably practicable to make a new picture (4)

c. (5) D was in custody and the police could have held an identification parade – i.e. UNLESS it would have been unreasonable to hold a parade or the D refused to take part in the parade and/or the appearance of the person had changed significantly

d. Definition i. Picture identification evidence relates to an identification made wholly or partly by the

person who examined pictures kept for the use of police officers (s 115(1))ii. Many inherent problems associated with the use of picture identification (Alexander)

e. Examples: i. Photoboard evidence (Forbes)

ii. Assertion by the victim that the person in a photograph was “very similar” to one of the four people present during a robbery and assault (Dhanhoa)

5. Aural Identificationa. Pure aural identification falls outside the scope of ∫and judicial discretion controls admissibilityb. Factors for the admissibility of evidence of voice identification include the distinctiveness of a voice

or familiarity of the witness with the person’s voice (Bulejcik)c. If voice comparison at issue, admissibility will likely turn on the quality and quantity of the taped

voiced. Example: Evidence from an interpreter that the voice of the accused matched a voice on a audio

surveillance tape (Leung and Wong)6. Identification of Objects

a. Principles relevant to identification of people can also apply to identification of objects connected with the accused (Lowe)

b. Example: Evidence describing a truck driving erratically sometime before an accident (Clout)7. Jury Directions Re: Admissibility of Identification Evidence

a. If identification evidence admitted, judge is to inform the jury (s 116(1))i. (a) That there is special need for caution before accepting ID evidence; AND

ii. (b) The reasons for that need for caution, both generally and specifically to the caseb. Additionally, must inform the jury, when picture identification evidence has been admitted, that the

pictures were taken after the D was taken into custody OR that the jury is not to assume that the D had a prior criminal record (s 115(7))

c. When it is necessary: i. When the identification evidence is a significant part of the prosecution case (Domican)

ii. When the identification evidence is disputed (Domican; Dhanhoa)iii. Despite the apparent mandatory nature of the warning it will not always be necessary

(Domican; Dhanhoa)

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1. It would be absurd to require a s 116 warning where the reliability of identification evidence is not in dispute (Dhanhoa)

iv. “Recognition evidence” that falls within the definition of “identification evidence” might require a warning (R v D)

v. Are primarily concerned with the reliability of the identification and may not be required if the issue is the “honesty” or truthfulness of the identification (Ilioski)

d. Content of the Warning i. No particular form of words need be used (s 116(2))

ii. Terms need not follow any particular formula, but must be cogent and effective (Domican)iii. Warning in general terms is insufficient (Domican)iv. Mere repetition of counsel’s arguments insufficient (Domican)

1. But reference to arguments may be sufficient if trial judge makes it clear s/he is giving stamp of ‘judicial authority’ to argument (Domican)

v. Trial judge has a duty to draw the jury’s attention to any weaknesses of the identification evidence (Domican)

e. Negative Identification Evidence i. Must ensure by appropriate direction that (Ilioski)

1. As Crown must establish BRD that D who committed the offence, the negative identification evidence raises a doubt to that fact

2. Crown must eliminate such doubt in order to succeed in establishing that fact, and3. If there remains a reasonable possibility that the negative identification evidence is

correct, the Crown case must failii. Example (Kanaan direction)

1. The Crown must remove or eliminate any possibility that the crime was committed by someone else, as well as satisfy you, on the evidence, on which it relies, that beyond reasonable doubt the accused committed the crime

iii. Summing up not necessarily defective if it does not include this warning, but trial judge must make clear that there cannot be proof brd if there remains reasonable possibility that accused is not the offender

8. Unreliable Evidence (s 165)a. A s 165 warning might still be required if the identification evidence is thought to be “evidence of a

kind” that might be unreliable; e.g.i. Facial mapping and other ‘expert’ opinion as to identification

ii. Voice identification by ‘ad hoc’ expert such as interpreteriii. Voice comparison made by the jury between the voice of D in court and voice on

incriminating surveillance tape (Korgbara)iv. “Negative” identification evidence (Kanaan)v. Identification of person other than the D (Rose)

b. S 165(2) covers content of the warning, but s 165(4) indicates that no specific form of words necessary

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16. Warning & Directions

1. Definition:a. A comment reminds the jury of matters they are taken to know but may have forgotten or

overlooked (Crampton)b. A warning derives from special experience of the law, usually required by statute or CL (Crampton)

2. Unreliable Evidence (s 165)a. Is the evidence of a kind that might be unreliable? (1)

i. (a) Hearsay evidence or admissionsii. (b) ID evidence*

iii. (c) Age: (6) Age of child cannot be sole factor to give s 165 warningiv. (d) Witness criminally concerned in events “accomplice” warningv. (e) Prison informer

vi. (f) Oral evidence of questioning by PO of D that is not signed/acknowledged in writing by Db. If it is unreliable, what must the court do?

i. (2) If trial by jury and party so requests, court is to do 3 things:1. (a) Warn the jury that evidence may be unreliable2. (b) Inform the jury to matters that may cause it to be unreliable3. (c) Warn the jury of the need for caution in determining whether to accept the

evidence or the weight placed on the evidenceii. (4) But no particular form of words need to be used

iii. (3) Judge can dispense with warning if there are good reasons for doing soc. Good Reasons for Not Giving a Warning (s 165(3))

i. General rule – should provide reasons though they do not need to be elaborate, just enough that ‘an independent fair-minded observer would accept that the accused had had a fair trial’ (Tarano)

ii. Approach in Stewart – sufficient that an overviewing court can see why s 165 was dispensedd. *Definition of “identification evidence” under s 165(1)(b) (Dictionary)

i. (a) An assertion by a person to the effect that a D was a person who was, present at or near a place where:

4. (i) Offence for which D is being prosecuted was committed; or5. (ii) Act connected to that offence was done, at or about the time at which the

offence was committed or the act was done, being an assertion that is based on what the person making the assertion perceived at that time or place

ii. (b) A report of an assertion in (a)iii. Overlaps with s 116 (which provides a mandatory and stronger warning) and CL

considerations in Domicaniv. Generally broader than s 116

3. “Accomplice Warning” (s 165(1)(d))a. Wording of the CL accomplice direction [dangerous to convict on the uncorroborated evidence of an

accomplice] has not been imported into the accomplice warning to be given under s 165(2) (Kanaan)b. Giving warning under s 165(2) is not necessary in every accomplice case (Kanaan) – NEVER under a

duty to give warningc. CL Basis for Accomplice Warning – Reference may be appropriate when informing the jury of the

matter which may cause the evidence to be unreliablei. That involvement is directly relevant to the credit of such a witness, and its relevance to that

issue would ordinarily be a matter of which jurors will be awareii. There is a motive for such a witness to construct a false version of the events in order to

justify his own behaviour or shift the blame from himself to others, by downplaying his own role and by either playing up the role of the accused or by blaming an innocent party

iii. Third basis on which the evidence may be unreliable is directly relevant to the indemnity or undertaken given to the witness… the consequence of such an indemnity or undertaking is that, in return for giving evidence, the witness obtains the benefit or advantage of evading a prosecution in relation to his own criminal activity

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4. Prisoner Informer Evidence and Evidence from Questioning of D that is recorded but not signed etc (s 165(1)(e)&(f))

a. CL requires the evidence to be: (Politt for PIE; McKinney for Recorded but not Signed)i. A significant part of P’s case;

ii. “Dangerous to convict” type warning;iii. Underpinned by the trial judge’s obligation to ensure a fair trial (and so no request needed)

b. Operation of s 165 REQUIRES request by a partyc. Otherwise s 165 framework should be set above CL requirements

5. Longman Warninga. Definition :

i. Warning that because of the passage of yrs, it would be ‘dangerous to convict’ on the complainant’s evidence alone unless the jury is satisfied of its truth and accuracy, having scrutinised the complainant’s evidence with great care (Longman)

i. Where there is substantial delay between time of alleged sexual offence and the complaint, Longman direction must be given

ii. Direction must make it clear that it is based upon court’s experience regarded of cases of substantial delay in complaining – not just comment

b. Content of the warning: i. Delay and passage of time means evidence of the complainant cannot be adequately tested

ii. It would be dangerous to convict on that evidence aloneiii. Jury is entitled nevertheless to act upon that evidence alone if satisfied of its truth and

accuracyiv. But the jury can’t be so satisfied without having first scrutinised the evidence with great carev. The judge should point out any circumstances peculiar to the case logically bearing on the

truth and accuracy of the complainant’s evidencevi. At every stage of scrutinising the complainant’s evidence the jury should take serious

account of dangers of convicting on his or her evidence alone6. Delay in Prosecution (s 165B)

a. Must be first satisfied that the D suffered forensic disadvantage occasioned by delay before giving a direction to jury (s 165B(2))

i. But only on application of party: D must argue this point (2)ii. Different from CL time as the only test

b. Content of the warning i. (4) No particular form of words necessary

ii. (5) Overrides CL – can only warn re: delay in accordance with this section7. Corroboration Requirements (s 164)

a. (1) The rule that evidence must be corroborated is abolishedb. (3) Uncorroborated evidence may be unreliable but the court is not REQUIRED to give s 165 warning

SOLELY by operation of s 1648. Warnings in Relation to Children’s Evidence (s 165(1)(c), (6))

a. (1) Court prohibited from:i. (a) Warn/suggest that children are a class of unreliable W

ii. (b) Warn/suggest that evidence of children as a class are inherently less credible/ reliable/require more scrutiny than that of adults

iii. (c) Give warning/suggest unreliability of the particular child solely on account of age of childiv. (d) Crim only – give a general warning to the jury of the danger of convicting on the

uncorroborated evidence of W is a childb. (2) Does not prohibit court from:

i. (a) Informing jury why this particular child might be unreliableii. (b) Warning or informing the jury of the need for caution in determining whether to accept

the evidence of particular child9. Further evidence that may require s 165 warning

a. Focus on issues where ‘judicial experience’ shows the need to warn or inform the jury of special reasons to be cautious (Stewart)

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b. In addition to specific categories listed, s 165 also covers evidence where ‘the trial judge considers that the court has some special knowledge or experience about the kind of evidence which the jury may not possess and which may affect its reliability, or jury may attribute more weight than it really deserves (Stewart)

c. Further list of evidence that may be “of a kind that may be unreliable”i. Disputed real evidence found in a police search (Richards)

ii. Police informant evidence (Reardon; Grey) iii. Demo evidence of D’s voice, appearance, clothing, handwriting, etc (Kirby)iv. Police evidence where corruption findings exist (Lonie and Groom)v. Witness given a discounted sentence (Stewart)

vi. Tracker dog evidence (Barnes)vii. Evidence recovered through hypnosis

viii. Identification evidence, outside the UEA’s definitionix. Evidence given by ‘unfavourable’ witness

d. Does NOT include: i. Evidence said to be unreliable because the parties dispute it (Serratore)

ii. Witness’ evidence of different contemporaneous observations about the time events occurred (Nguyen; Tran)

1. Evidence from a complainant regarding a sexual assault offence (Lane)

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Date post:	31-Jan-2018
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