Evidence Law Queensland by Queenslandlaw

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									INTRODUCTION TO EVIDENCE A. The Nature of Evidence Evidence laws are designed to promote justice during the course of a trial (criminal or civil) The court has the discretion to allow information to be given in evidence. When deciding what evidence the court will allow into evidence, two tests must be met: relevance and materiality Material means directed at a fact in issue of an offence Australian courts have an adversarial system of justice:  The court does not set out to seek the absolute „truth‟ of its own accord.  Instead, the Court relies on the evidence presented by the lawyers in the case.  The Court decides whether the parties have met their burden of proof based on the evidence given – if they have discharged their burden, that party will get judgment. The Theory of the Case:  Each party will attempt to make its case more persuasive by developing a “theory of the case”  This “theory” is just each parties version of events and the conclusions of fact and law that flow from these events Relevance – Admissibility – Weight When lawyers collect evidence for trial, they will go through a threestep refining process to decide which evidence should be given: Three-Step Checklist: 1. Is the evidence relevant? 2. Is the evidence admissible? 3. How much weight should be given to the evidence? Relevance Relevancy Test I s evidence logically probative Does evidence rationally affect the probability that a fact in issue did or did not occur? – s55(1) CEA To be determined on the ordinary experience of things  ‘Natural’ Relevancy Test = even minimally probative evidence is admissible  ‘Legal’ Relevancy Test = must be sufficiently probative R v Stephenson  “not all evidence which is logically relevant is admissible…evidence whose weight is so minimal is said to be insufficiently relevant.” Therefore, evidence will be “relevant” if it could rationally affect the assessment of the probability of the existence of a fact in issue.  Smith v R: evidence was not relevant because the police were in no better position than the jury to determine whether the accused was the person in the photo  “If evidence is not relevant, no further question arises. Irrelevant evidence may not be received.” Each party will attempt to collect and present evidence which is relevant and supports its “theory of the case” (version of events). The relevance of evidence will also depend on its context. There are also differing degrees of relevance:  Directly relevant evidence  evidence which supports a conclusion without need for inference (eg: a confession of guilt)  Indirectly relevant evidence or “circumstantial evidence”  evidence which requires a court or jury to infer a conclusion based on knowledge of human behaviour (eg: a person running away from a crime scene must have a guilty conscience). Discretions to relevancy Judicial discretion prevents detrimental results Fariness discretion (crim) Time and resource discretion (civil) Discretion to exclude if in criminal trial – minimal probative value is outweighed by potential unfair prejudice Discretion to exclude in civil trial – minimal probative value is outweighed by waste of time. Admissibility Evidence will be inadmissible for three main reasons: 1. The evidence is unreliable  Hearsay evidence  Opinion evidence 2. The evidence is misleading  Whether the relevance of the evidence is outweighed by its prejudicial effect 3. The evidence is against public policy  Privilege  Evidence is illegally or unfairly obtained Evidence which is inadmissible on one ground may be admissible for another reason – therefore the evidence may be admitted to prove one issue, but not another.  Subramaniam v DPP  the issue was whether the accused could provide evidence of threats made to him by terrorists if he did not assist them. The accused alleged duress as a defence/ H: the evidence was admissible to show the accused‟s mental state but inadmissible to prove the terrorist‟s true intentions. Weight Once evidence is classified as “relevant” and “admissible” the court must then decide how much weight it will attach to that evidence. Weight = the degree of reliance which the court places on information. The weight attached to a single piece of evidence may be very different from the weight attached to a party‟s entire case.

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When a judge sits alone without a jury, the judge decides on all questions of law and fact. The judge decides as a matter of law what evidence is relevant and admissible. To decide relevance and admissibility, the judge may hear evidence which is prejudicial to one of the parties. The judge may then decide not to take into account that evidence. Judge & Jury In cases where there is a jury, the roles of the court and jury are more clearly defined. Court  the court is responsible for directing the jury on points of law and to ensure that they are not misled by inadmissible evidence. Jury  jury decides on questions of fact Burdens of Proof Burden of proof = he who asserts must prove

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c/f: court cannot judicially note gene scanners as accurate in DNA identification (R v Hytch) A fact may become very well-known or notorious after constant recognition by the courts – thus, something which could not have been noted earlier can now be judicially noted due to repetition:  R v Hunt  “matter of common knowledge that a person with a blood alcohol concentration of two and a half times the legal limit is likely to be intoxicated.”  c/f: Cavanett v Chambers (earlier case)  Held: could not take judicial notice that a person with a blood alcohol reading of 0.2 was intoxicated. Judicial Notice After Inquiry Some facts, although not in dispute, can only be judicially noted after research is carried out to confirm that fact. Judicial notice after inquiry applies where facts are not instantly known to everyone – these facts are often of a specialist or technical nature. “Inquiry” by the court usually involves consulting some wellrespected and accurate work which is not in dispute (eg: dictionary). Examples of judicial notice after inquiry:  Rules of communism were judicially noted after consulting reference texts (Australian Communist Party v Commonwealth)  Encyclopaedia determined which part of a plant contained seeds (Horman v Bingham) The Evidence Act allows certain facts to be judicially noted:  s43  courts must judicially note the law of their own jurisdiction (statutory and case law)  s65  court may consult a published book, map, chart or document to determine the location of a place or distance between two places.  s66  certificate of “astronomical phenomena” can be used to prove sunrise, sunset etc.  s68  interstate laws may be proved by authenticated copies. Formal Admissions Generally, any matter which a party formally admits does not have to be proved by the other party – this is a well accepted rule of evidence and procedure. Admissions by a party cannot be used for any other purpose than for the existing proceeding. Formal admissions can be withdrawn from the record only with leave of the court. Formal Admissions in Civil Cases Pleadings:  Formal admissions in civil cases are made during the „pleadings‟ stage – this is where each party lays out its claim, defence and reply against its opponent.  Any fact which is admitted during pleadings does not require further proof. Interrogatories:  These are questions in writing which must be formally answered on oath by the other party.  The answers to these questions are admissible at the trial. Notice to Admit:  A party may also require its opponent to admit certain facts by issuing a Notice to Admit.  If a party fails to answer this notice and the fact is proved at trial, then the refusing party must pay the costs of proving that fact. Formal Admissions in Criminal Cases An accused may formally admit a certain fact which is not essential to his defence and which he has no interest in denying (eg: a person accused of rape may admit intercourse but claim that consent was given). Unlike civil cases, criminal cases have NO formal pleadings process. Therefore, formal admissions will be read to the jury at the start of the trial.  s644 Criminal Code  formal admissions in criminal cases must be made in open court The best example of a formal admission in a criminal case is a „guilty plea‟ – this means that the accused admits to all the elements of the offence.

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Presumptions Presumptions = when one party proves certain facts which, in the absence of rebutting evidence, entitles the court to draw further conclusions of fact which are “presumed” to exist.. Presumptions of Fact A presumption of fact is a request that the court draw certain inferences from certain basic facts which have been established by evidence. A presumption of fact is also known as “circumstantial evidence.” These presumptions do not have to be adopted by the court – they merely entitle the court to adopt that conclusion if it wishes. Presumptions of Fact:  Presumption that an accused person in possession of recently stolen property was involved with the theft in some way.  Presumption of Continuance  presumes that, as a matter of human experience, a state of affairs which existed earlier is likely to have remained in existence at the time in question (see cases of Buchanan and Horvath)  Reverse Presumption of Continuance  presumes that the existence of a state of affairs in the past may be presumed from the existence of the same state of affairs today (Mason v Tritton – presumption that NT rights existed back to 1788 because of its existence today). Presumptions of Law Presumptions of law are the only „true‟ presumptions – they oblige the court to draw certain conclusions and are mandatory. The following presumptions of law exist:  Presumption of sanity  every person is presumed to be of sound mind (s26 Criminal Code) – the prosecution need prove that the accused was of sound mind at the time of the incident.  Presumption of Lack of Criminal Capacity for Person under 14  a person under the age of 14 is presumed not to be “criminally responsible” for his acts or omissions unless proven otherwise (s29(2) Criminal Code)  Presumption of Innocence  every person, whether in a criminal or civil matter, is presumed to be innocent until proven guilty – “he who asserts must prove.”  Presumption of Regularity  presumption that a person acting in a public role (eg police officer) has been properly appointed and is performing their duties in valid manner.  Presumption of Accuracy of Scientific Instruments  scientific and technical instruments are presumed to be accurate (eg: speed radars, breathalyser machines etc).  Presumption of Involuntariness of Induced Confession  confessions which are brought about by threat or coercion are presumed to be made involuntarily and therefore inadmissible. Judicial Notice Judicial Notice = certain facts that are so well-known do not need to be formally proved by evidence. Instead, the court may assume them without need for supporting evidence. Forms of Judidcial notice Commonly known facts –generally known and accepted and cannot be disputed Facts readily ascertained – knowledge capable of accurate and ready determination, whose accuracy cannot be questioned.( Holland v Jones) Legislative facts – in interpretation of statute judges make own inquiries Facts that need not be proven in accordance with statute Process of Judicial notice – normally non contested – if contested – voir dire and judicial discretion. Precednet used in judicial fact not in adjudicative fact. Judicial Notice Without Inquiry A fact may be judicially noted without inquiry where the fact is so well-known that everyone is taken to know it.  Examples  universities exist for learning purposes, cats are kept as domestic pets etc. Facts can only be judicially noted without inquiry where the fact is so well-known to everyone, not just the judge because of their special knowledge (Weatherall v Harrison) Judicial notice may be taken of facts well-known by people of a particular location (Warren v Pilkington; Simpson v Fraser). Examples of Facts which have been judicially noted:  AIDS is a life-threatening disease (Mutumeri v Cheesman)  Sunday Markets are held in Brisbane (Naomi Marble & Granite v FAI)  Child care is used for working mothers with children (Trenery & Hedge v Suncorp)  Interest rates on credit cards is usually 15-16% (Planet Securities v Dalrymple)

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Estoppel Estoppel is a device used by courts which allows them to prevent a matter or issue from being re-examined (prevents the court from being „clogged‟ (blocked)). This is different to an appeal  an appeal legitimately allows a person to have the same criminal process continued and the original decision reviewed. TEST = estoppel only applies:  Between the same parties; and  Litigating the same matter; and  In the same legal capacities. There are two types of estoppel: 1. Cause of Action Estoppel  parties are not allowed to have the entire case re-litigated (known as “Res Judicata” estoppel). 2. Issue Estoppel  where parties seek to re-litigate a single factual issue from a previous decision. Criminal Cases Cause of Action Estoppel Cause of Action Estoppel is known as the “rule against Double Jeopardy” Estoppel means that no person can be put on trial for more than one offence arising out of the same wrongful conduct.

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Functions of the Judge and Jury Single Judge / No Jury

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This is limited  an accused who commits more than one wrongful act during an incident can be indicted one charge for each wrongful act. Examples:  A person who drives dangerously around the streets of Robina commits only one continuous act of dangerous driving. The Crown is estopped from making a new charge from each street.  A man who captures a girl, beats her and then rapes her in an isolated location may be charged with three offences – this will not be double jeopardy.  This principle prevents the Crown from choosing a different charge to prosecute after an accused has already been acquitted (found not guilty). Two Limbs of Cause of Action Estoppel – s17 Evidence Act:  First Limb  an accused person cannot be re-tried for an offence which he might have been convicted during a previous trial, where the present charge would have been a lesser alternative (i.e. Crown cannot re-try for manslaughter if it was previously unsuccessful in a murder trial);  Second Limb  an accused person cannot be re-tried on a more serious charge arising out of an action which has already been decided on the basis of a lesser charge (i.e. the Crown cannot re-try for murder if it was previously unsuccessful in a manslaughter trial). Special Case: Perjury  El Zarw  E was acquitted of murder based on strong alibi (explanation of a person‟s location). Later found out that alibi was false and evidence was perjured (made-up). E was charged with perjury. In perjury trial, Crown was estopped from asking the accused to prove his innocence for the second time at his perjury trial.  R v Carroll  C was convicted of killing a child. Court of Appeal overturned the conviction on basis of strong evidence given on oath of innocence at trial. 14 years later, C was tried for perjury for lying at original trial. Held: it is an abuse of process for the Crown to charge a person with perjury when proof of the charge can only be shown by contradicting the outcome of a previous charge. (McHugh J) Issue Estoppel Rogers v The Queen  issue estoppel has no place in criminal law – therefore the Crown can re-open a single factual issue from a previous case. R v Storey:  Facts  S had allegedly abducted a girl and raped her nearby. S was acquitted of the abduction (kidnapped) but the jury could not decide on the rape charge. A new trial was ordered for rape charge.  Held: the issue of S‟s guilt of the abduction had been settled (not guilty) and could not be re-opened. But the Crown was still allowed to prove rape without making reference to the abduction charge.  Therefore, issue estopped cannot apply to criminal cases – therefore the Crown can re-open a single issue from a previous offence which arises in connection with a new, unrelated offence.

The main issue involved is whether a conviction of one person can be used as evidence in the later criminal trial of a cooffender.  R v Kirkby  the fact that a person has been convicted of a criminal offence has no evidential significance in the later trial of a co-offender. FORMS OF EVIDENCE C. All evidence may be classified in three basic ways: 1. Oral, documentary and real evidence; or 2. Direct or circumstantial evidence; or 3. Primary or secondary evidence. These three methods are separate ways of categorising all items of evidence. Oral, Documentary and Real Evidence Oral Evidence - Orality Oral evidence is simply verbal testimony given on oath by someone directly involved. Oral evidence relates a witnesses own personal experiences and perceptions – for example, what that witness saw, heard, felt etc. In most cases, witnesses will only be able to give limited oral testimony about what another person perceived (as this is known as hearsay). Oral evidence is also important because it helps in the interpretation of facts (eg: expert witnesses). Modern technology and legislative changes have allowed oral evidence to be given by video-link . Once trial begins – all evidence is presented continuously Documentary Evidence A document includes more than a piece of paper with writing on it. s3 Evidence Act  document includes things such as maps, graphs, drawings, labels, audio and visual tapes, evidence produced by computer records and “any other record of information.” Non testimonial documents – eg. Photos Non hearsay use of documents- eg. Will There are 3 main ways in which a document can become an item of evidence. 1. It may be an item of “real” evidence  the document is important because of the place where it was found or the condition it was in. 2. It may be evidence of a legal transaction or disposal of property  the document is evidence of something else which has occurred (eg: receipts for payment of money; title documents). 3. It may contain evidence of relevant events  the document is used as a form of silent testimony which proves relevant events (eg: business contract).  The problem with this evidence is that it is like hearsay because it cannot speak for itself but is offered as evidence of truth of what it records.  It is also problematic because the Common Law requires original documents to be produced, not copies (this is known as the Best Evidence Rule).  The Parole Evidence Rule also states that one cannot seek to amend, vary or contradict with oral evidence what appears to be the clear terms of a written contract. Authentication- through oral evidence of eye- witnesses testifying to circumstances of creation. Nowdays though mostly use statutory presumptions or inference form docment itself. -

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Prospectant Evidence  events which occur before the event under inquiry 2. Concomitant Evidence  the main events into which the court is inquiring (known as “Res Gestae”) 3. Retrospectant Evidence  events which occur after the events into which the court is inquiring but which shed light on what actually happened. Primary and Secondary Evidence 1.

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Primary evidence is the best form of evidence which one can adduce in proof of a particular fact or issue. Secondary evidence is some form of evidence less than the best.  Example  if A is accused on assaulting B. The best evidence of the assault will come from B and any other person watching the event. Secondary evidence would be given by X who was told by B that A assaulted him (hearsay). Best Evidence Rule:  This rule states that parties must provide the best available evidence in all cases.  This rule has been watered down and today, the only real application is in the area of hearsay evidence.  Today, leading the best available evidence is a question of good advocacy and procedure. Leading the best evidence will give the case more credibility and weight.  The Best Evidence Rule still applies today in respect of documents – this means that original copies of documents should be given in court, unless the court allows copies to be given.  If the court does allow copies to be given, the Best Evidence Rule will not apply – therefore the parties are not obliged the best “secondary evidence.”  Butera v DPP  best evidence rule applies to audio and video tapes. Therefore, oral evidence of someone‟s memory of what was said will be inadmissible. But, a copy of the tape can be produced once it has been classified as genuine. COMPETENCE AND COMPELLABILITY A. Introduction Competence, compellability and privilege all relate to the status of a witness who is called to give oral evidence in court. These terms mean: 1. Competence = whether or not a person is allowed to give evidence in court. 2. Compellability = whether or not a person can be forced to give evidence in court. 3. Privilege = whether a competent & compellable person can legally refuse to give evidence in court Competence Presumption of Competence s9 Evidence Act  every person, including a child, is presumed to be competent to give evidence in a proceeding on oath.  This means that in general, every person is capable of giving evidence in court, regardless of their age, religion, disability, criminal record or any other factors. s9A  a person is competent to give evidence if they are able to give an intelligible account of events which they have observed or experienced. s9B  a person is competent to give evidence on oath if the person understands:  that giving evidence on oath is a serious matter; and  when giving evidence, the obligation to tell the truth is above the duty to ordinarily tell the truth Therefore, section 9 allows a person who does not understand the nature of an oath to give unsworn evidence, even if that witness cannot understand the duty of telling the truth after the duty has been explained to them. s9B  if the person is not competent of giving evidence on oath, the court must explain to them the duty of speaking the truth. s9C  expert evidence may be given to decide whether a person or child is competent to give evidence. s17 Oaths Act  allows a witness to make a “solemn affirmation” instead of swearing an oath. Incompetence – Insufficient Intelligence / Children s9(4) Evidence Act  a person is not competent of testifying if the do not have sufficient intelligence to give reliable evidence.  This applies to children (under 12) + all witnesses who might be thought to have a handicap Demirok v R  the question of intelligence is one to be decided by the judge in the absence of a jury. s9A  when there is a question as to whether or not a person has sufficient intelligence to give reliable evidence or when the court is admitting the evidence of a child under 12, expert evidence can be taken as to the person‟s suitability as a witness. However, merely because a witness may not have sufficient intelligence to answer some questions, they may still be competent to testify on area of fact not affected by their mental condition. Special Rules for Children Giving Evidence:  s21A  evidence does not have to be given in open court  s93A  evidence of certain pre-recorded evidence by a child under 12 or an intellectually impaired person. Compellability Generally  everyone who is a competent witness is also compellable. This means that every competent witness can be forced to give evidence in court (unless an exception applies). The exceptions to the general compellability rule are discussed below. These exceptions differ depending on the circumstances, such as: 1. The accused in a criminal case – s8(1) Parties to a Civil Action s7 Evidence Act  generally, parties (and their spouses) to a civil action are competent and compellable to testify This means that parties and their spouse can be forced to give evidence in a civil trial.

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Civil Cases Cause of Action Estoppel (“Anshun Estoppel”) The same principle from criminal cases applies. Henderson v Henderson  a party cannot re-litigate points that belonged to previous litigation and which the parties might reasonably have brought forward at that time. Port of Melbourne Authority v Anshun  HCA (High Court of Australia) refused parties the chance to re-litigate the same or similar matter because it was “so closely connected with the subject matter of the original action.” Issue Estoppel Jackson v Goldsmith  court takes a very narrow view of what the “issues” of a civil case are. This means that in most cases, parties will be able to re-litigate points which are similar to each other and will not be estopped. 3. -

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E. Criminal Convictions as Evidence in Civil Proceedings Relevance of a Prior Criminal Conviction:  The main issue is whether evidence of a prior criminal conviction can be used as evidence in a subsequent civil case of the same facts.  s79 Evidence Act  evidence that a person has been found guilty of a criminal offence CAN be used as evidence in a civil case to prove that the defendant committed that offence.  s81  a prior criminal conviction can be proved by a variety of means (but a Certificate of Conviction is usually used).  This section has overturned the decision in Hollington v Hewthorn. Relevance of a Prior Acquittal (not guilty verdict):  The main issue involved is whether an acquittal from a prior criminal case can be used as evidence in a later civil case.  Evidence of an acquittal cannot be used in a later civil case – this is because when a jury delivers a „not guilty‟ verdict, it gives no reasons. This is just a flat-statement which does not point to which issue the prosecution failed to prove. Relevance of a Prior Criminal Conviction in the Trial of a CoOffender: B. 1. 2. -

Real Evidence Real evidence is the term used to describe all the evidence which may be obtained from a “thing” Examples include stolen property, murder weapon, DNA samples, demeanour (appearance) of a witness. Real evidence allows the court to draw conclusions by seeing the evidence. Most real evidence is „contextual‟ in nature – therefore the significance of real evidence is usually shown through oral evidence. Sometimes a court will use photographs of a scene or go to the scene and „view‟ for itself. Once an item becomes an exhibit, it may be examined by the jury and taken to the jury room, but the judge has the discretion to refuse this. Requirements – Authentication – prove by witness that the exhibit is what it purports to be. Also integrity, continuity and accuracy is needed. Exclusion – if exhibit is misleading or intended to mislead - if more prejudicial than probative e.g. inflammatory photos R v Ames Demonstrative and Circumstantial Evidence Demonstrative Evidence To assist a witness in giving evidence Not independent or original evidence Admissible if accurate and of assistance Circumstantial Evidence Circumstantial evidence is indirect evidence of fact in issue. Therefore, any evidence which is not direct evidence will be circumstantial. Example – if A is charged with assault on B, and W gives evidence of A running away from the scene of the assault immediately after hearing B cry out in pain. In this case, W‟s evidence is direct evidence of A running away and circumstantial evidence that he committed the assault. The admissibility of circumstantial evidence depends on its relevance. Examples of circumstantial evidence include: fingerprints, handwriting, dental impressions, DNA evidence, evidence of a person‟s character and previous convictions. A collection of circumstantial evidence is often referred to as a „rope‟ because each strand adds to the overall strength of the case. Wigmore’s 3 Categories of Evidence:

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The Rule in Jones v Dunkel This rule applies when:  A party to a civil action with knowledge of relevant facts fails to testify; or  A party to a civil action fails to call a material witness or produce a material document when it would have been expected to do so. Rule  when a party to a civil action fails to testify or call a material witness:  It may be assumed that the witness would not have assisted the party; or  The court may more easily accept evidence which may have been contradicted by the witness. Rule in Jones v Dunkel in Criminal Cases:  From a tactical perspective, the Crown may be disadvantaged if it fails to call a material witness in a criminal case.  However, the High Court has stated that the „Rule in Jones v Dunkel‟ will not apply against the Crown if it fails to call a material witness (Dyers v The Queen)  Therefore, where the Crown fails to call a material witness in a criminal case, no adverse inference (negative conclusion) can be drawn by the court/jury (but see Weissensteiner below) The Accused in a Criminal Case This section looks at whether the accused in a criminal case can be forced to testify. Two special cases will be examined:  When the accused acts as a witness for himself  When the accused acts as a witness for or against a co-accused (a person jointly accused of the same crime). The Accused as a Witness for Himself s8(1) Evidence Act  in a criminal trial, an accused may give evidence for the defence but is not compellable to do so. Therefore, the accused is allowed to give evidence for himself but cannot be forced to do so. Also, the accused is competent to testify for a co-accused but is not compellable (cannot be forced). Alibi Evidence Alibi evidence = a claim by an accused that at the time of the offence they were somewhere other than the place where the crime was committed and therefore cannot be guilty of the offence. Generally, the defence does not have to disclose its case to the Crown prior to the trial. However, alibi evidence is an exception to this rule. s590A Criminal Code  an accused must give the Crown written notice of „alibi evidence‟ within 14 days of the end of the committal hearing.  This rule applies whether or not the accused plans to give the alibi evidence or if he plans to call another witness to give alibi evidence.  If another witness is to give the alibi evidence, the defence must give the Crown the names and addresses of this witness so they can be interviewed by the police for the Crown. The Failure of an Accused to Testify The accused has a common law right to silence – therefore an accused can legally remain silent in a criminal case and is under no duty to give evidence. No inference can be drawn from the silence of the accused. However, in some circumstances, an adverse inference (negative conclusion) may be drawn where the accused chooses to remain silent Weissensteiner Direction:  When an accused chooses to remain silent, the silence is not evidence of guilt or innocence  But, where the accused has knowledge or relevant events or facts and fails to give evidence, it is no longer rational or reasonable for the jury to conclude that the accused is innocent.  Must distinguish between inferring guilt from mere silence and inferring guilt from silence when the accused has knowledge of facts which would support their innocence. Limitations to the use of a Weissensteiner Direction  There are limits to the use of a W.D. and it will not be appropriate in some situations.  Peel’s case  it is not appropriate to give a W.D. after the court says that no adverse inference (negative conclusion) will be drawn if the accused chooses not to testify – to make a WD in these circumstances would be misleading.  R v Ryan  it is inappropriate to give a W.D. when the judge is aware that the accused has previously given his version of events (eg: to a police officer).

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MacPherson v The Queen  a judge must be careful not to give the accused advice about his options to testify. The Accused as a Witness For and Against a Co-Accused The Accused as a Witness For the Co-Accused s8(1) Evidence Act  an accused is competent but not compellable to testify for a co-accused. This means that the accused is allowed to give evidence which supports a co-accused, but cannot be forced to do so. The Accused as a Witness Against the Co-Accused An accused is not competent (and not compellable) to testify against a co-accused for the Crown. This means that the accused is not capable and cannot be forced to give evidence against a co-accused for the Crown. But, when testifying for himself, the accused may give evidence which seeks to blame the co-accused (known as a „cut-throat defence‟). The rule that an accused is not competent to testify against a coaccused only applies for as long as the accused remains a “person charged”:  Section 8(1) defines “person charged” as an accused in the current trial.  Once an accused ceases to become a “person charged” in the same trial as the co-accused, that defendant is then competent can compellable for the Crown.  This means that if an accused has been sentenced or the charges are dropped, he is no longer a “person charged”. The Crown can now force him to give evidence against the other defendant. Husband & Wife Co-Accused s8(7) Evidence Act  when the co-accused are husband and wife:  the spouse is competent but not compellable to give evidence against the other for the defence;  the spouse is not competent & not compellable to give evidence against the other for the Crown Compellability of a Spouse of the Accused This section looks at whether or not a spouse (husband or wife) can be forced to give evidence for:  an accused spouse; or  the prosecution and co-accused. This section does not look at the compellability of a spouse for a coaccused spouse (see above). Who is a Spouse? Under Queensland law, a spouse means a husband and wife who are lawfully married (does not include de-facto partners). The rules for compellability apply to:  Events which happened while a couple was married, even if they are since divorced  Events which happened before marriage, provided that the couple is married at the date of trial. Competence and Compellability of an Accused s8(3) Evidence Act  the spouse of an accused is competent and compellable to give evidence for the accused. This means that a wife can be forced to give evidence supporting the innocence of her husband. If the wife is a co-accused, she is no longer compellable because her status of co-accused will override her status as a spouse (s8(7) Evidence Act).

1. Privilege against Self-Incrimination 2. Legal Professional Privilege 3. “Without Prejudice” Privilege 4. Public Interest Immunity. - Privileges not available - no religious advisor privilege - no spousal privilege - no doctor and patient privilege - no therapist/ psychologist privilege - no journalist and informant privilege A. Privilege Against Self-Incrimination Rochfort v TPC  the privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity. EPA v Caltex  the privilege “is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender.” Application Section 10(1) Evidence Act  nothing in this Act shall render any person compellable to answer any question tending to criminate the person TEST (R v Boyes) = a person can claim privilege where the danger of being incriminated is real and appreciable. Court decides whether apprehension is reasonable A person may claim this privilege in respect of:  Crimes in Queensland and the rest of the world,  All forms of civil penalties  Professional disciplinary societies – eg: Queensland Law Society. The privilege can be claimed in criminal and civil trials, Royal Commissions, coronial inquest and any tribunal or other court. The privilege also applies to documents – therefore no one can be forced to produce a document which is likely to incriminate that person. Loss of Privilege Section 10(2) Evidence Act  once an accused chooses to testify at their own trial, they cannot claim the privilege against self incrimination.  They are then forced to answer questions which may incriminate them s15(1)  when an accused person chooses to give evidence, they cannot refuse to answer a question or provide documents on the basis that it may incriminate them. Waiver – the privilege may be loss if a person answers questions which incriminates them, without knowing the privilege existed. Limitations The privilege can only be claimed by the witness to protect himself – therefore the witness cannot claim the privilege to protect someone else from being incriminated. The privilege can only be claimed by natural persons (people), not corporations. The privilege does not cover items of real evidence – therefore no privilege can be claimed over fingerprints, DNA samples, etc. The privilege does not cover offences that a person has already been convicted of. R v King  when a convicted co-accused is called as a witness for the defence and claims the privilege regarding other offences involving the accused, the court is not allowed to draw any adverse inference (negative conclusion) against the accused. Legal Professional Privilege Application There are two limbs to Legal Professional Privilege (LPP): 1. Confidential communications passing between solicitor and client for the dominant purpose of giving or receiving legal advice; lawyer – client communications. Privilege is a substansive right protected inside and outside courtroom. Baker v Cambell. Pre existing documents not covered. or 2. Communications brought into existence for the dominant purpose of use in existing, or preparation for anticipated, litigation. Litigation privelege  Esso v FCT  stated that the dominant purpose test applies, not the sole purpose test (overrode previous case of Grant v Downs).  R v Williams  for communications between solicitor and client to be privileged, they must be fairly referable to the relationship & occur in the ordinary scope of professional conduct.  Baker v Campbell  once LPP is claimed, it covers all forms of compulsory disclosure. Therefore a person is not even required to disclose when a Federal Search Warrant is given. Privilege can be claimed over oral statements and documents. Waterford v Cth  LPP extends to communications passing between Government departments and their “in-house” lawyers. Limitations In some situations, a person will not be able to rely on LPP:  Further an illegal purpose (R v Cox & Railton)  To locate the location of a child (Re Bell; ex parte Lees)  Where a government seeks to exceed its statutory power (Attorney General (NT) v Kearney)  Where statute abolishes the right to claim the privilege Daniels Corp International v ACCC  LPP is a right which cannot be abolished by legislation, unless Parliament does so with express language. Privilege cannot be claimed over a lawyer‟s observations and items of real evidence No „innocence at stake‟ exception exists. Carter v Managing Partner Loss of Privilege

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B. Competence and Compellability for the Prosecution and Co-Accused. s8(2) Evidence Act  generally, a spouse is competent to testify for the Crown or for a co-accused but is not compellable to do so. This means that a spouse is capable of giving evidence for the Crown or co-accused in a matter involving the other spouse, but cannot be forced to do so. s8(6)  the judge or magistrate must advise the spouse that they are free to testify or not.  Exceptions – Competent & Compellable There are two cases in which a spouse will also be compellable (forced) to give evidence against their spouse for the Crown or a coaccused. These include: 1. When the spouse would be competent or compellable at Common Law:  A spouse is competent and compellable at Common Law in cases involving personal violence against the spouse herself.  This means that spouses are forced to testify against the other spouse in cases of personal violence.  This seeks to overcome the reluctance of a spouse to testify against her husband. Public policy seeks to identify and punish domestic violence. 2. In cases listed in Schedule 2 Evidence Act where the victim was under 16:  Schedule 2 offences = sexual offences, murder, attempted murder, manslaughter and assaults, child neglect.  A spouse will be forced to testify against the other in cases where the spouse is accused of a Schedule 2 offence against a child under 16. PRIVILEGE A person who is otherwise a competent and compellable witness may sometimes be relieved of the obligation to testify because the law recognises that they have a privilege against doing so. The only remaining privileges are those which seek to promote justice and fairness or where there is a genuine desire to promote confidentiality. It is essential to limit the number of privileges available as they greatly restrict the probative value of evidence. Four main privileges will be examined: (c) 1. -

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- Other exceptions to right to silence include Recent HC warnings (Azzorpardi v The Queen) - Also calling other witnesses –Jones v Dunkel in criminal cases (Dyers v The Queen) (c) Cross-Examination of an Accused who Testifies Once an accused becomes a witness, they can be cross-examined by the Crown. The accused cannot claim the privilege against self-incrimination. But the Crown can only cross-examine the witness on the current charge, an cannot cross-examine in relation to previous convictions or bad character. s15 Evidence Act:  (1) – an accused may not claim the privilege against selfincrimination in respect of the offence that they are charged in the current trial.  (2) – the Crown cannot ask the accused questions about other offences or convictions or their bad character. s618 Criminal Code  at the close of the Crown‟s case, the accused must be given the opportunity to indicate whether he intends to give evidence (either by personally testifying or calling other witnesses).

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Waiver The privilege belongs to the client and can only be waived (given up) by him. Once a client waives the privilege, he can never reclaim it for that piece of communication. If the privilege is jointly shared (eg: between spouses) all parties must waive before the privilege ceases to apply. Waiver can be either express or implied. Implied waiver can occur when:- party entitled to privilege performs an act inconsistent with confidence preserved by it. Mann v Carrell  A person answers a question in court without claiming the privilege;  A party allows a witness to refresh his memory from a document;  A party discloses in confidence and states no intention to waive (Goldberg v Ng) AFP v Propend Finance  if privilege is lost on a copy of a document, it will still remain on an original. LPP will not be waived when:  Documents are sent to an expert for the purpose of preparing a report  A witness is supplied with a copy of their statement; or  Privileged documents are disclosed in a court application (Le Grand v CJC) Inadvertent Disclosure R v Tompkins  once privileged material is disclosed to the other side, the privilege is lost. But this may encourage opposing parties to resort to trickery or theft of documents in order to claim “inadvertent disclosure.” Therefore the court allows parties who have inadvertently disclosed a privileged document to reclaim the privilege if he applies to do so before it gets into evidence.

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Under the Common Law, when examining in chief each party must refrain (avoid) from asking the witness „leading‟ questions. There are two types of leading question: 1. A question which suggests a desired answer – eg: “the accused hit you, didn‟t he?” 2. A question which assumes a fact which has yet to be proved by evidence – eg: “what did you do after the accused hit you?” Lawyers for the prosecution and defence cannot ask leading questions in chief because the evidence should be given from the witness‟s own memory, not given to them by the lawyer. The judge will not usually prevent leading questions – the opposing party must object. Will be accorded less weight because of the danger of collusion and impropriety – exception – introductory matters, matters not in dispute and certain proceedings Ban on Prior Consistent Statements Witnesses are assumed to be telling the truth. Therefore, lawyers are prevented from asking their witnesses if they have always maintained the version of events they are now telling.  For example, a lawyer cannot ask: “has this been your story of events all along?” However, there are two Common Law exceptions to this rule. This means that in the two exceptions below, lawyers are allowed to ask whether the witness has had the same version of events the whole time.
“Fresh Complaints” s4A Criminal Law (Sexual Offences) Act

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Counsel who called the witness cannot attack their credibility (cannot say that they are lying) because they have been called to speak the truth. Counsel may instead seek an „adverse witness‟ declaration and then attack the witnesses credibility Adverse Witness Declaration Section 17(1) Evidence Act  Counsel will make an application to the court to have their witness declared adverse by voir dire hearing (private hearing with no jury). s17(2)  at the voir dire (private hearing), counsel will give details of the circumstances and give the witness the chance to remember making the statement:  If the witness recalls the circumstances  the jury will be recalled and the trial continued.  If the witness still denies the statement  counsel will prove that the witness has made inconsistent statements by leading oral or written evidence (ss 17,18).  If the witness says nothing and remains silent  the witness may be declared adverse based on their demeanour (appearance), not their prior inconsistent statement. R v Mullins  the judge has the discretion to treat a witness as adverse based on any prior inconsistent statement made. Once a witness is declared adverse, the jury will be re-called and counsel may then attack the credibility of that witness. s101(1)(a)  the previous inconsistent statement can be used as evidence of the witness‟s lack of credibility. Cross Examination

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C. Public Interest Immunity (Crown Privilege) Public Interest Immunity is not a privilege claimed by the parties but a decision of the court to refuse the disclosure of certain evidence. Documents are usually exempted from disclosure in the public interest on issues relating to:  National security (Duncan v Cammell Laird)  Secret Cabinet discussions (Sankey v Whitlam; Cth v Northern Land Council)  International relations  Conduct of criminal investigations  Government efficiency  Identity of confidential informants (spies) (D v NSPCC) Documents in the public interest are only disclosed in the most exceptional circumstances (Sankey v Whitlam) It is important to balance the public interest against an individual‟s right to justice (Alister v The Queen) Examples Duncan v Cammell Laird  court refused to disclose the design of British submarines during World War II as it would threaten national security. Cth v Northern Land Council  High Court decided that Cabinet papers relating to uranium mining contracts were State papers of the highest category and are therefore immune from disclosure. Sankey v Whitlam  cabinet documents can only be disclosed in exceptional circumstances. The purpose of exempting Cabinet documents from disclosure is to promote open communication at the highest level of government. -

Allegation of “Recent Invention” A witness may be asked in cross-examination whether the version of events that they have just told in chief was a “recent invention” (the witness changed their story when examined in chief). Common Law exception that a witness may be asked in reexamination whether in the past he has made a statement consistent with the one just given and therefore would be unlikely to have invented it. This evidence goes to the credibility of the witness. S101 (1)(b) allowed in re-examination to rebut a suggestion that evidence has been fabricated.

Bolstering - Witnesses not permitted to give evidence of previous assertions to bolster their own credit, nor may evidence supporting credibility of witnesses be called. 3. (a) Refreshing Memory Application It is a Common Law rule that witnesses must give evidence based on their own memory. Usually, they cannot be reminded of the facts from any document or other source. However, a witness may have their memory „refreshed‟ if the following 3 elements can be proved: 1. The witness needs to refresh and a „good cause‟ exists (eg: time delay between events and trial) 2. The witness is refreshing their memory based on a document or record compiled at a time reasonably contemporaneous (at the same time) with the events described in the document; and 3. The witness is able to confirm the accuracy of the document. Effect of Refreshing from Documents If the above three elements can be proved, the witness may have their memory refreshed from a document or other record. Exception to Rule in Walker v Walker  once a witness has their memory refreshed, opposing counsel (lawyers) may cross-examine that witness on those parts of the documents used to refresh that witness‟s memory.  If the counsel cross-examines on other sections of the document, the whole document becomes evidence of truth of its contents (Rule in Walker v Walker). No Independent Recollection (memory) This situation is different to refreshing memory because the person cannot ever remember making the record. This is common for doctors in a busy hospital who have made a medical report but cannot remember ever making it, despite being certain that it is their writing etc. Gillespie v Steer  the court allows memory to be restored after proving:  Witness could identify the document as their own;  Document was made at a time when the observations were fresh  The witness is satisfied that the document is an accurate record of events at the time  The system of record keeping was accurate  The witness is willing to adopt the document as their own.

Every witness who gives evidence for the prosecution and defence is then open for cross-examination by the opposing party. The purpose of cross-examination is: 1. To reduce the credibility of the evidence given by the witness in chief  cross-examination as to “credit”. 2. To establish valuable facts in favour of the party crossexamining him, as part of the development of the case  cross-examination as to the “issues”. Counsel who is cross-examining is free to examine the issues not raised in chief and can ask leading questions. LIMITS self incrimination no hearsay improper questions Rule in Brown Collateral Rule Prior inconsistent statements 1. Prior Inconsistent Statements Counsel may cross-examine a witness and ask questions about any prior inconsistent statement without first having the witness classified as adverse. Section 18(2) Evidence Act  counsel must give details of the circumstances and give the witness time to remember making the prior inconsistent statement:  If the witness admits the prior inconsistent statement  no further proof is required  If the witness denies the prior inconsistent statement  counsel may use a written statement to prove the inconsistence (s19). If there is no written statement, counsel may call another witness who heard the statement being made. s101(1)(a)  the prior inconsistent statement is now deemed to be proof of its contents. In re-examination, counsel who originally called the witness may ask questions to explain away the inconsistency.

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Other Claims to Privilege Queensland has been conservative in granting too many privileges. As a result, Parliament has recently decided to abolish the “Marital Communications” privilege from the Evidence Act (formerly s11 Evidence Act). The number of privileges which exist in Queensland are limited. There are no recognised privileges for communications between:  Doctor and patient  Clergyman (priest) and followers  Journalists  Personal counsellors  Social workers. Although Queensland does not allow these privileges, 5 Australian jurisdictions recognise privilege between clergyman and followers, while 3 jurisdictions allow privilege claims between doctor and patient.

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Crown Splitting its Case The Crown cannot use a previous inconsistent statement in crossexamination if it has not led that evidence in chief (this is known as the Crown “splitting its case”). The Crown must offer all proof before the accused makes their defence (R v Soma) R v Soma  Crown attempted to prove inconsistent statement in cross without leading that evidence in chief. Held: Crown cannot split its case – ought to have proved inconsistency in chief. 2. The Rule in Browne v Dunn Rule  before a party asks the court to reject a witness‟s evidence and before leading evidence to contradict the witness, the witness must be given a fair opportunity in cross-examination to deny the allegations which are to be led against them. (R v Foley; Smith v Advanced Electrics) Failure to give witnesses a chance to comment on or deny these allegations may result in either:  The party losing the right to make those allegations in chief; or  The witness being re-called and given the opportunity to comment on or deny the allegations. Finality Rule on Collateral Issues Finality Rule Collateral issue = an issue which is evidence of a persons credit (reputation as a person), not their credibility (believability as a witness on the issues). Finality Rule = the first answer a witness gives regarding an issue of credit (reputation) is the final answer and it cannot be challenged.  This means that in cross-examination, Counsel can only ask questions about a persons credit to that witness, and cannot call another witness to contradict. Exceptions to Finality Rule However, the Finality Rule does not apply in certain situations. This means that in cross-examination, Counsel may call witnesses to contradict a witness‟s credit. These include: Previous Inconsistent Statement  Can call another witness to show lack of credit where the witness has made a prior inconsistent statement.

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ORAL EVIDENCE This section looks at the process by which oral evidence is obtained from a witness in court. The procedure is basically the same for criminal and civil cases and involves: 1. Examination in chief 2. Cross-examination 3. Re-examination

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-s101(3) – refresher note may be required to be made evidence - if so – it is evidence of facts, which could have been testified orally Inpeaching -s 17(1) A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence. 4. Adverse (“hostile”) Witnesses An adverse (hostile) witness is a witness who deliberately withholds evidence or truth from the court (R v Hayden& Slattery).  This is different to an unfavourable witness (a witness who fails to give evidence to the standard expected) because a hostile witness deliberately sets out to withhold evidence. Adverse witnesses are problematic for 2 reasons: 1. They do not give the evidence required of them; and

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Examination in Chief Examination in chief is the process of questioning of own witness to extract evidence. Object – to get evidence on the record in support of elements of your case Must be based on personal knowledge, must be facts and must be relevant Ban on Leading Questions

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The statement is used as proof of what it contains and is used to discredit the witness.

Criminal History  Prior convictions may be proved if denied s 16 Bias  Bias is defined as “any motive for giving false evidence” (R v Umanski)  A witness who is „biased‟ may have their credit reduced through evidence of other witnesses.  R v Schneider  mother coached son to give biased evidence. Reputation for Lack of Veracity (Honesty) Mental or Physical reliability – medical evidence may be used to contradict Improper Quesitons

Propensity Evidence  evidence which describes a person‟s known behaviour in the past. It assumes that the way a person behaved in the past will be a good indicator of how they will behave in the future. Propensity evidence can be the most compelling (believable), have the greatest probative value, and also be the most prejudicial. The conflict between “probity” and “prejudice” will be discussed in the section below. PROBITY vs. PREJUDICE 2. A. Propensity Evidence Propensity (or disposition) evidence is evidence that an accused has behaved in a particular way in the past and by implication is likely to behave a similar way in the future. Propensity evidence often involves a trade-off between probity and prejudice: 1. Probative value  evidence highly relevant to the issues 2. Prejudicial effect  evidence which is highly influential on the court. The court is often faced with a decision whether or not they should admit propensity evidence which shows that the accused has a tendency to behave in a certain way. This evidence is highly probative to the issues but is also highly prejudicial. Generally  for propensity evidence to be admissible, its probative value must outweigh its prejudicial effect (DPP v P)

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Wilson  during a trial of a man for the murder of his wife, the Crown relied on disposition evidence to prove the violent relationship which existed during the marriage.  Harriman  disposition evidence can be used to show the relationship between 2 co-accused The defence can also rely on disposition evidence to show the nature of a relationship (eg: to establish a defence of battered wife syndrome). Propensity Warning Required Disposition evidence may be given, provide a propensity warning is given (Bowman) A propensity warning is a warning given to the jury that the disposition evidence does not show a tendency to behave in that way toward the victim.  Gipp  conviction overturned for failing to give a propensity warning. Disposition Evidence in Civil Cases Similar fact evidence may be used in civil cases but the rules are more relaxed than in criminal cases because the possible prejudicial effect in civil cases is lower (Joy v Phillips) However, the prejudicial effect of this evidence can still be significant in civil cases, especially for those whom the evidence operates against (Purnell v Medical Board Qld)

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Court may disallow improper questions or advise witness they need not answer s21(1) Improper means a question using inappropriate language, or that is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive s21(4) In determining whether a question is improper the court must consider impairments the witness may have and other matters such as age, education and cultural background s21(2) and (3) -

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B. C. Re-examination The purpose of re-examination is two-fold:to explain, repair, rebut or improve evidence: 1. Deal with any issues raised in cross-examination; and 2. Limit, as far as possible, any damage suffered during crossexamination. Only matters arising out of cross-examination can be dealt with in reexamination. No new evidence can be led in re-examination which was omitted (left out) in chief. Court may allow questions regarding credibility to be asked in reexamination if they were brought up in cross-examination. The same rules that applied in chief apply to re-examination. Examination of Special Witnesses Section 21A Evidence Act  prescribes special conditions under which witnesses may give evidence. Entitlement to Special Conditions s21A  Special witnesses include:  Children under 12;  People who would be disadvantaged due to intellectual impairment, cultural difference or intimidation, or  People who would be likely to suffer „severe emotional trauma.‟ Special Facilities Available In criminal trials  accused can be in a separate room linked by closed-circuit television or behind a screen. In all trials:  Court can be closed to outsiders  Witness may be allowed a support person  Evidence may be pre-recorded s21A(3)  court cannot make an order for special facilities if it would unfairly prejudice any party or, in a criminal case, the person charged or the Crown. s17 Oaths Act  allows a witness to make a “solemn affirmation” instead of swearing an oath. 1. -

Similar Fact Evidence D. General Principles Similar Fact Evidence (SFE) is evidence that an accused has on a previous occasion acted in a way which suggests that he is guilty on a present charge. Makin v AG NSW  two rules relating to SFE: 1. Mere evidence that an accused has committed an offence previously is not admissible – as the probative value is outweighed by the prejudicial effect of the evidence. 2. Evidence that an accused has committed an offence previously will be admissible where there is a “strong nexus of similarity” between the prior offence and the present case. Admissibility of Similar Fact Evidence – not admissible if it relevance derives from showing a tendency, disposition and propensity SFE will be admissible through two different types of reasoning: 1. Coincidence reasoning 2. Proven propensity reasoning. Coincidence Reasoning SFE can be admissible through a process of coincidence reasoning. Coincidence reasoning = the use of several independent sources of evidence which show that the accused is guilty of other acts which bear a strong nexus of similarity to the current case.  DPP v Boardman  similar, unusual facts relating to a school principal‟s sodomy on one boy was used as similar fact evidence to prove the same on a second boy.  R v Smith  evidence of a husband‟s criminal past was used as similar fact evidence to prove the overwhelming coincidence between the way he killed his current wife and previous wife. Proven Propensity Reasoning SFE can also be admissible through a process of proven propensity reasoning. Proven propensity reasoning = SFE may be admitted where the accused has already been convicted or has admitted previous acts which show a strong nexus of similarity to the current case.  R v Straffen  girl was strangled by a criminal who escaped from a mental asylum in exactly the same way as for which he was convicted. Previous conviction had a strong nexus of similarity, therefore used as SFE. Perry v R  SFE can only be used for proven misdeeds, not new allegations (these must be proved) The Law in Australia Pfennig (HCA)  SFE is admissible when, taken with all other evidence, leaves no rational explanation which is consistent with innocence. O’Keefe (Qld)  SFE is admissible when, taken with all other evidence, is reasonably capable of excluding all innocent conclusions. Coonan (Qld)  evidence of a previous act of grievous bodily harm was used as SFE to prove stabbing due to similar circumstances between the two McGrane  demonstrates how the use of SFE has been changed. In this case it was used, despite the facts not being similar. The only similarity which existed was that M had previous wrongfully given patient‟s drugs, which is prima facie insufficient to show a tendency to abuse or kill patients. This section looks at what questions can be asked of an accused once they choose to testify. General Rules Section 15(1) Evidence Act  an accused who testifies cannot claim the privilege against self-incrimination. s15(2) Evidence Act  an accused should not be asked questions in cross examination (or if asked, is not required to answer) relating to previous convictions, charges or bad character. Exceptions to s15(2) s15(2)  an accused can be asked questions about the past convictions, charges or bad character in some circumstances, including:  (a) – where the questions would be admissible at Common Law as similar fact evidence or disposition evidence (Garrett);  (b) – where the questions would establish the innocence of a co-accused;  (c) – where the accused puts their own good character in issue or attacks the character of a prosecution witness (victim) or co-accused (see below);  (d) – where the accused gives evidence against a co-accused which supports the Crown‟s case or undermines the coaccused‟s case. For the purpose of s15(2)(c), the accused will put their own character in issue by:  Testifying as to their own good character;  Leading a character witness;  Cross-examining a Crown witness in order to show the accused‟s good deeds. For the purpose of s15(2)(c), the accused will not put their own character in issue by:  Leading a legitimate defence;  A witness gives the accused an unexpected good reference;  The accused is tricked into giving evidence of their own good character (R v York);  The accused makes a guilty plea. For the purpose of s15(2)(c), an accused‟s legitimate defence becomes an attack on a prosecution witness when:  Extra imputations which are not necessary for the development of the defence are made; and  There is a false attack on the character of the complainant or co-accused (Phillips v R) The Accused as a Witness

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CHARACTER, CREDIT & CREDIBILITY A. Forms of Character It is important to distinguish between the two forms of a persons character: 1. Credit  reputation as a person. 2. Credibility  a person‟s believability as a witness. It is permissible for Counsel to attack the credibility of a witness. However, the Finality Rule (previous section) prevents Counsel from asking questions which are merely aimed at attacking the witness‟s credit as a person.  Finality Rule  the first answer a witness gives regarding an issue of credit (reputation) is the final answer and it cannot be challenged by other evidence (unless lack of credit is due to: bias, criminal history; previous inconsistent statement; lack of veracity). This is because questions which only relate to credit (reputation) are only relevant to the witness‟s character as a person. On the other hand, it is important to be able to test a witness‟s credibility because this is relevant to the issues. In many cases, the character of the witness is also an issue, such as defamation or sexual harassment.

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Cross-Examination of Sexual Offence Victims This section looks at the extent to which a complainant in sexual offence cases can be cross-examined on their own sexual activity. General Rule Section 4(1) Criminal Law (Sexual Offences) Act  cannot lead evidence in cross-examination on the complainant‟s past sexual experiences, other than with the accused (includes sexual fantasies) Exceptions s4(2) Criminal Law (Sexual Offences) Act  can ask questions about the sexual history of a complainant, with leave of the court, when: 1. It is substantially relevant to the facts in issue – therefore if the victim‟s sexual history is highly relevant to the accused‟s guilt or innocence, these questions may asked in cross-examination.  Gregory v R  court allowed cross-examination of complainant because at the same time she was a „victim‟ she was also engaged in group sex.  R v Starkey  accused was charged with rape. Allowed cross-examination of victim on fact that earlier in the day she was engaged in a bondage session. 2. It is proper material for cross-examination as to credit – the victim may be cross-examined when they put their own „decent‟ sexual character in issue (ie lying) or they allege lack of consent which is easily disproved.

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Disposition Evidence to Prove Relationships Disposition evidence can be used to prove other elements of the Crown‟s case, such as the nature of a relationship between two people. Application s132B(2) Evidence Act  evidence of a person‟s disposition (nature) can be used the existence, nature and quality of a relationship between two people.

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Character and Propensity 1. The Common Law distinguishes between two types of character evidence: 1. General Character Evidence  looks at the person‟s reputation in the community and whether they have a generally good or bad character. -

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R v Holt  victim alleged that she had little sexual experience. Put her own character in issue as complainant could show experience in a brothel. R v Warrell  victim alleged no consent due to fear of pregnancy. Defence could cross-examine on use of contraceptives.

was present could infer it was the same person. This supports the inference that the victim set out with the intention to meet W.  Circumstantial Inference of a Prior Event Hearsay statements will be admissible as circumstantial evidence where they indicate the maker‟s state of mind before the event. Pollit  A told B about a planned murder which went wrong. B was present while A received a phone call about the failed murder attempt. A told B that it was P on the phone.  Evidence of the phone call  admissible to show that the person on the phone was P and by circumstantial inference P was the killer. Circumstantial Inference of a Concurrent Event Hearsay statements will be admissible as circumstantial evidence where they indicate the maker‟s state of mind at the time of the event. Benz  mother and daughter killed de-facto partner and dumped body. Motorist stopped to inquire and identified them.  Evidence was admissible because of Common Law rule that evidence is admissible where it is highly reliable (also part of the Res Gestae – see below).

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HEARSAY A. 1. Hearsay Rule General Rule

Informal Admission = an acknowledgment of criminal or civil liability by a party whether or not made when court proceedings were contemplated. Informal admission can be:  Written or oral (eg: confession)  By conduct  using a circumstantial inference that someone is liable (Holloway v McFeeters – failing to stop after a car accident). Lies and Informal Admissions R v Edwards  lies amount to an informal admission of guilt where it relates to a material issue + the reason for lying is that the truth would implicate the accused (connect them with the crime). Edwards Direction When an accused lies, the Crown may seek an Edwards Direction from the court. This Direction has the effect of admitting guilt. Before granting an Edwards Direction as an informal admission of guilt in favour of the Crown, the judge must:  Precisely identify the lie told;  Identify the circumstances that make the admission against interest; and  Warn the jury that there are reasons a person lies apart from hiding the truth Statutory Exceptions to the Hearsay Rule Section 93B (Deceased or Mentally/Physically Incapable) Application This exception to the hearsay rule applies to criminal cases only:  Homicide (murder and manslaughter)  Assaults (including grievous bodily harm)  Rape and sexual assault  Suicide  Concealment of birth  Offences endangering life and death Requirements s93B(1) Evidence Act  where a person makes a representation about an asserted fact of which they have personal knowledge, it is admissible if the person making the statement is dead or mentally or physically incapable of giving evidence. Must be first hand hearsay s93B(2) s92B(2)  the representation must have been made:  Around the same time as the event, making fabrication unlikely; or  In circumstances making it highly probable that the representation is reliable; or Against the interests of the maker at the time when it was made Qualifying Provisions s93B(3)  the opposing party may rebut this evidence by:  Calling another witness who heard the statement (and can testify to a different version of what the witness said);  Calling another witness to give evidence relating to the same facts (who can testify to a different version of events to the witness). s93C  any party can ask the judge to warn the jury about the unreliability of hearsay evidence s96  court can decide the admissibility of hearsay statements by drawing reasonable inferences from the circumstances, including:  The form or contents of any document containing the statement;  Medical certificate relating to the ability of a witness to attend. s98  judge has the discretion to reject the statement where it is inexpedient to justice. s99  judge can prohibit an exhibit from being taken back to the jury room where it is likely to be given undue weight. s100  hearsay evidence cannot be used to corroborate (confirm/support) other evidence s102  the weight attached to hearsay statements is to be determined by:  how contemporaneous (close in time) the statement was to the events described  whether the maker of the statement has any incentive to conceal or misrepresent the facts Documentary Evidence The primary concern with documentary evidence is that a document is „hearsay‟ evidence. Over the years some complex rules have developed to deal with documentary evidence and its admissibility in court. There are three main provisions dealing with documentary evidence: 1. s92  documentary evidence in civil proceedings 2. s93  documentary evidence in criminal proceedings 3. s95  documentary evidence produced by a computer in any proceedings. Civil Proceedings Permitted „Hearsay‟ Documents s92(1) Evidence Act  two types of documentary hearsay are permitted in civil cases:  (a) – where the maker has personal knowledge of the contents of the document – first hand hearsay  (b) – where the statement was recorded or compiled in the course of an undertaking supplied by a person with (presumed) personal knowledge of it. s3  for the purpose of s92(1)(b), undertaking is broadly defined to include:  all businesses  all professions or trades whether run as businesses or not  all statutory bodies

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for the purpose of proving the facts the statement states RULE = express or implied assertions made out of court by persons not called as witnesses are inadmissible as truth of what was asserted (Cross on Evidence) (book) Evidence given in court by a witness must be restricted to that witness‟s account of what he perceived with one of his senses (sight, hearing, touch, smell, taste etc). Evidence must also be restricted to statements of fact. Hearsay evidence is excluded from evidence for three reasons: 1. It is not the best evidence 2. The primary evidence is not given on oath, but instead told to the secondary witness. 3. The demeanour (appearance) of the primary witness cannot be assessed in court. Hearsay is seen as unreliable and dangerous, although many exceptions exist which allow it to be admitted. Hearsay vs. Original Evidence It is important to distinguish hearsay from original evidence:  Hearsay is not allowed when witness B attempts to state in court what witness A said to him for the purpose of persuading the court that what A said was true.  Original evidence, on the other hand, is admissible. It merely involves witness B stating in court that witness A actually said that statement, not that it was necessarily a true statement. Subramaniam v DPP  Held that threats were admissible as original evidence that they were actually made, not as proof of the terrorist‟s intentions. Forms of Hearsay There are three main types of hearsay: 1. Express hearsay  where A attempts to tell the court what B said to him, and that what B said was true. 2. Implied hearsay  involves statements from which evidence may be inferred.  Walton’s case – child said “hello Daddy” when on the phone. Impliedly that child‟s father on the phone. 3. Hearsay by conduct  non-verbal statements, such as running away, gestures etc (same as circumstantial evidence – see below). Hearsay vs. Circumstantial Evidence In some circumstances, hearsay evidence may be admissible as a form of circumstantial evidence. Hearsay will be admissible as a form of circumstantial evidence where: 1. The statement conveys information to the accused; 2. The statement indicates the state of mind to the maker of that statement. Statement Conveys Information to the Accused Hearsay evidence will be admissible as circumstantial evidence where it can be used to indicate the implied state of knowledge of the person receiving the information. Example  C gives a gun to A and says it‟s loaded. A shoots B and pleads accident.  C‟s statement is admissible as original evidence that the statement was made and also circumstantial evidence of A‟s state of mind – ie: must have had knowledge that the gun was loaded and therefore rebutting the defence of accident. Statement Indicates the Maker‟s State of Mind Hearsay evidence will also be admissible as circumstantial evidence where it can be linked via a presumption of continuance to a fact in issue. This arises in three circumstances: 1. The statement supports a circumstantial inference regarding a subsequent event; 2. The statement supports a circumstantial inference regarding a prior event; 3. The statement supports a circumstantial inference regarding a concurrent event. Circumstantial Inference of a Subsequent Event Hearsay statements will be admissible as circumstantial evidence where they indicate the maker‟s state of mind after the event. Walton v R  W told his wife that he planned to kill his ex-wife and arranged to meet her. Before death, ex-wife told others of her plans to meet W. One witness was with ex-wife when she received a phone call from W to arrange the meeting. Victim told witness that it was W on the phone.  Evidence of intention to meet  admissible – original evidence of victim‟s state of mind. Can use presumption of continuance to infer that the victim carried out her intention to meet W. (confirmed Hytch)  Evidence of phone call  admissible as evidence that the recipient of the call believed it to be that person Witness who

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Common Law Exceptions to the Hearsay Rule C. At Common Law there exist some principal exceptions to the Hearsay Rule. Res Gestae – spontaneous things, excited utterances- spontaneous words as „part of transaction‟. Spontaneity is a guarantee of truth The “Res Gestae” (RG) is the same matter into which the court is enquiring. RULE  words said at the time of the critical event are admissible hearsay. This is because words said in the „heat of the moment‟ are more likely to be true and there is less time for fabrication. Provided statements made in approximate contemporaneity.  Andrews  HELD – event so dominated mind as to exclude possibility of concoction. Distinctive reaction and therefore no time for reasoned reflection – spontaneity. The Res Gestae is used as original evidence to obtain a clearer picture of the overall events:  R v Lyons  L killed a person at a pub. Res Gestae was used to put L‟s actions in context because he had been asked to leave immediately beforehand. Declarations by Deceased Persons At Common Law, the courts have been willing to admit the evidence of a person who was going to give evidence at trial but who died before they had the opportunity to do so. This is provided that there is some factor which gives an added guarantee of the reliability of that evidence. Declarations Against Financial Interest At Common Law, a statement made by a person now deceased which was against their financial interests may be admitted in court as hearsay. This evidence is assumed to be reliable because a person would not make such a statement if it was not true. Higham v Ridgeway  these declarations will only be admissible if 2 requirements are met:  Declaration was made first-hand  the person making the statement must have personal knowledge of the contents of the statement.  Person must be aware that the statement was against their interest. Dying Declarations As a Common Law exception to the hearsay rule, declarations made by dying persons may be admissible in court. Requirements:  The declaration must be made during an unlawful homicide (murder or manslaughter);  The victim must be competent at the time of making the declaration; and  The victim has a “settled, hopeless expectation of death,” even if they did not die (R v Peel) Declarations as to Health, Fitness & Mental State There are two types of declarations as to health, fitness and mental state which act as exceptions to the hearsay rule 1. Declarations as evidence of conduct  at Common Law, the instantaneous reaction of a person to some external stimulus (such as pain) is regarded as original evidence of the conduct and is not caught by the hearsay rule. 2. Declarations as evidence of symptoms  when a person describes symptoms at a time which is contemporaneous to when it was felt, that statement is admissible as truth that the sensation existed and as an exception to the hearsay rule (R v Perry) This evidence is not admissible as the cause of the symptoms. Statements Made in Previous Proceedings RULE  sworn evidence from previous criminal or civil proceedings between the same parties is admissible in subsequent proceedings where:  The witness is unable to attend (due to death, illness, overseas etc); and  The evidence relates to substantially the same issue (R v Thompson) s111 Justices Act  the transcript from the committal hearing is admissible at trial. Informal Admissions General Informal Admissions 1. (a) -

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all Qld and Commonwealth departments, including the police and courts. Undertakings need not be made in the ordinary course of business, as long as they are made within the course of business. s92(4)  for the purpose of s92(1)(b), a person can be supplied with information by tape recording or dictation, provided it was recorded by the supplier or with their knowledge. Admissibility s92(1)  ostensible (apparent) requirement that the maker of the statement or the supplier of information be called as a witness. s92(2)  the statement is admissible without calling the maker as a witness where they:  Are dead or physically/emotionally unfit to attend;  Are out of Qld and it is not reasonably practicable to have them attend;  Cannot be found or located with reasonable diligence;  Cannot be reasonably expected to have any personal recollection due to time lapse (Gillespie v Steer);  Is not require by any one of the parties for cross examination;  Would require undue delay or expense. s92(3)  further hearsay evidence is allowed to determine whether the tests are satisfied (affidavits) Admissibility and weight is subject to sections 96-100, 102-104. s92 only required if documentary evidence is testimonial- only applies to statements of which direct oral evidence is permitted. s96 – drawing a reasonable inference from the form and the contents of the document itself. Criminal Proceedings Permitted Documents s93  a documentary statement is admissible where it is recorded/compiled in the course of trade or business from information supplied by a person who had (presumed) personal knowledge of it.  Therefore hearsay evidence is only admissible when the info is supplied by a person with personal knowledge of its contents. It does not include situations where merely the maker has knowledge of its contents. s93(2)  defines trade or business narrowly to include public transport, utility or similar undertaking (Qld Rail, public/private hospitals and schools). This excludes police records. Admissibility There is no apparent requirement that the supplier of the statement has to be called as a witness. s93(1)(b)  the statement is admissible without the supplier being called as a witness where he/she: Cannot use further hearsay evidence to assess whether the tests have been satisfied. s130  judge has the discretion to exclude evidence if admissibility would operate unfairly against the accused. Admissibility and the weight attached to documentary evidence in criminal proceedings is subject to sections 96-100, 102-104 (see above section for details of these provisions).

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R v S  the behaviour of sexually abused victims to their abusers does not form part of a recognised body of learning and is not beyond the knowledge of human experience (not admissible as opinion evidence).  Babsek  expert opinion evidence on battered wife syndrome was admissible. Section 9A Evidence Act  expert evidence can be taken on the reliability of a witness under 12 or an intellectually impaired person. Establishing the Expertise The person must be proved to be proved to be an expert and must confine their evidence to their area of expertise (Darrington & McGauley) Opposing counsel may attack the expert on their credibility:  Ryan  expert opinion on DNA evidence was inadmissible because it was given by a different person to who took the sample  Darrington & McGauley  court held that it was ok for an expert to given opinion on effect of drugs on mental state, but not on how alcohol impacts on the accused‟s intent to kill.  Ramsay v Watson  opinion evidence based on the employee‟s files, none of whom testified (hearsay) was inadmissible.  Farrell  the admissibility of expert evidence can be split (ie: some parts admissible, other parts inadmissible). Thus, the effect of alcohol on memory is not beyond ordinary human experience (inadmissible) but its effect on anti-social behaviour was (admissible). Basis for the Opinion Opinions must be based on either:  Observed facts  first hand knowledge (eg: autopsy);  Assumed facts  a hypothesis (scientific assumption) about what occurred;  Books and journals  this is an informal exception to the hearsay rule (Borowski v Quayle) RQ v Australian Red Cross  scientific journals are not evidence of truth of their contents when merely referred to by an expert. When adopted by the expert, they become part of their expert opinion and are deemed to be truth of their contents. They become admissible as original evidence of medical knowledge.

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Computer generated image – based on details that the victim or witness supplies, a computer is able to produce an image of what the accused looks like. Alexander v R:  An identification parade is the preferred method of identification but an accused in not required to participate.  A photoboard may be used in exceptional circumstances (or in the investigation stage) Clune  exceptional circumstances includes where the accused refuses to take part in an identification parade (therefore can use the photoboard). Burchielli  the use of a photoboard for identification purposes is dangerous (especially when conducted in the back of a police car). Domican Direction

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Domican Direction = where identification is a significant issue in the Crown‟s case, the jury must be warned of the dangers associated with identification evidence, any factual points of concern, and also of the possibility that the witness may be mistaken despite appearing adamant. Terms of warning must be cogent, effective and appropriate. Must warn as to danger of convicting if reliability is disputed. Domican v R:  A conviction after a Domican Direction is given is deemed to be based on the Direction;  Convictions will be quashed on appeal where the Domican Direction is inadequate (ie: where there ought to have been an acquittal); Murphy  conviction was quashed on appeal as no Domican Direction was given. In the case, the victim failed to identify the accused on a photoboard. Victim could only identify the accused after leading questions were used. Identification was difficult because incident occurred at night when the victim was intoxicated. ILLEGALLY OBTAINED EVIDENCE Applicable mainly to real evidence – Cleveland v R – also testimonial evidence A. Introduction The court‟s have always protected their general discretion to exclude probative evidence when it has been obtained by methods and processes of which the court disapproves, or where the evidence is likely to operate „unfairly‟ against the accused, or could result in a wrongful conviction. Illegal evidence is not unreliable evidence – is not necessarily unfair against accused. The court may exclude illegally obtained evidence either by:  Exercising its general discretion to exclude evidence which is „unfairly‟ obtained; or  Enforcing its right to exclude evidence obtained by means which are contrary to public policy. The „unfairness‟ discretion tends to be applied in the interests of the individual accused:  s130 Evidence Act  “nothing in this Act derogates from the power of the court in a criminal case to exclude evidence if the court is satisfied that it would be unfair to the person charged.”  Nb: s130 applies to evidence which is also admissible, but whose prejudicial effect outweighs the probative value. The „public policy‟ discretion is applied for the benefit of the community as a whole:  s10 Criminal Law Amendment Act  creates a statutory presumption that any confession preceded by a threat or promise has been induced by it, and is inadmissible. Illegally obtained evidence includes more than just induced confessions, and these rules apply equally to other evidence which has been illegally obtained (eg: search without a warrant). Discretion to exclude illegal evidence – Bunning v Cross, R v Ireland calculated disregard of error seriousness of breach extent to breach impinging on rights nature of rules impinged gravity of offence charged cognency of evidence tainted. Eg. Breach Christie Discretion (Lee Discretion) Christie Discretion  a discretion that the court may exercise to exclude highly prejudicial evidence which would operate unfairly against the accused (R v Christie) This is now known as the Lee Discretion However, just because evidence is merely prejudicial to the accused is not in itself sufficient to make it inadmissible. It is important to look at the prejudicial effect of the evidence, not its method of attainment (this is covered by the Ireland Discretion, below). Other Evidence that Operated Unfairly Similar Fact Evidence  a Christie Direction will apply where the prejudicial effect of past misdeeds outweighs the probative value of that evidence. Identification Evidence  a Christie Direction will apply to exclude unsafe identification evidence, together with a Domican Direction. Horrific or emotive photographs and videos should not be shown to the jury unless they are of real importance to the Crown‟s case (Jamieson & Elliott). Ireland Discretion Ireland Discretion  the court has the discretion to exclude illegally obtained evidence that would be contrary to public policy to admit. Nb: merely because evidence may have been obtained unfairly does not automatically make it inadmissible (discretionary). BALANCE = nature of the offence vs. degree of police misconduct (Bunning & Cross)  When conducting their investigations, police are not meant to adhere to a given code of good sportsmanship or chivalry (Bunning & Cross) It is possible for evidence to be obtained illegally and for it to operate unfairly – in this case the court may exercise both a Christie and Ireland Discretion.

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B. Non-Expert Evidence There are in practice many circumstances in which a court allows opinion evidence to be given by a person who is not an expert, but is qualified to give that opinion. Admissibility A person who is not an expert may give opinion evidence in two circumstances: 1. They have experience gained from the „university of life‟ – eg: weather, appearance of person:  Witness can give an „honest belief‟ opinion, even if not absolutely certain (Fry v Gathercole)  Witness cannot offer a legal opinion based on evidence – this must be left to the jury to decide (eg: whether a person was unfit to drive, driving too fast etc). 2. They have expertise gained through experience  Weal v Bottom  a truck driver was allowed to give opinion evidence regarding how a wet road affects a trailer.  ASIC v Adler  company director was able to give opinion evidence on what was careful attention to company affairs.

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OPINION EVIDENCE Generally, witnesses must testify only on the facts that they are aware of. The court is not usually interested in their opinion on what may have happened. Roberts (book)  “the witness must not state an opinion on the facts, but should confine the evidence to describing the facts.” There are some circumstances where the court will allow opinion evidence to be given: 1. Expert opinion – to explain technical concepts or areas need expertise to understand. 2. Lay-person opinion – not an expert, but a person with knowledge of special facts.

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Identification Evidence B. Identification evidence is a special form of non-expert opinion evidence. The use of identification evidence can be dangerous and subjective – often a person is adamant that they are telling the truth or can positively identify someone when evidence later proves a mistake. Forms of Identification Evidence There are three main forms of identification evidence: 1. Recognition  where a witness can positively identify an accused. This is direct evidence which is sufficient to identify and convict. 2. Resemblance  where a witness can only state that the person looks like the perpetrator. This is circumstantial evidence from which the jury must decide. 3. Distinctive characteristics  where the accused and the perpetrator have similar characteristics in appearance. This is circumstantial evidence – the more unusual the distinctive characteristic, the stronger the evidence. Domican v R  an identification made for the first time in court is of very little value. An identification should be made as soon as possible after the incident. Methods of Identification Section 275 Police Powers & Responsibilities Act  there are many alternative forms of identification evidence:  Identification parade – where a group of people line up and the witness can view and select the accused (from behind one-way glass)  Photoboard – a group of photos on a page from which a witness may identify the accused.  Videotape

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Expert Evidence Role of Expert Evidence Expert evidence assists the court in interpreting evidence which is beyond everyday experiences. The facts themselves must still be proved by evidence (by the expert) and may be challenged and even rejected. Expert evidence must not make the ultimate decision in the case (Davies v Magistrates of Edinburgh)  Technology has made this difficult because it is often a conclusive indicator of guilt or innocence, for example DNA evidence (Murphy)  Mason  expert opinion that stab wounds were not self inflicted but murder was admissible, despite making ultimate decision in the case. Admissibility of Expert Evidence Expert opinion will be admissible where the evidence:  Forms part of a recognised body of learning (Fletcher); and  Is beyond the knowledge of human experience (Weal v Bottom). It can be difficult sometimes to classify whether or not something is within the common knowledge of a jury, or whether it requires expert evidence. When dealing with human experiences, the court has decided the following:  Turner  opinion evidence is not admissible where we are describing common human reactions to experiences  Murphy  opinion evidence was admissible to assist the court in determining whether the words used by an adult with an intellectual age of 10 years during an interview were his own.

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