DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
11 EVIDENCE
SUMMER SESSION 2015-16
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed
Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW
Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
March 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Compulsory Assignment
Assignment Question
Prescribed Topics and Course Outline
Lecture Outlines
1
1
1-2
2
3
4-5
5
6
6
7-11
12-23
1
LAW EXTENSION COMMITTEE
SUMMER 2015-16
11 EVIDENCE
COURSE DESCRIPTION AND OBJECTIVES
The Evidence course is devoted to an examination of the rules governing the presentation of evidence
in common law trials, both civil and criminal.
The laws of evidence applicable in New South Wales and the federal jurisdictions have recently
undergone a wholesale revision. The central focus of the course is now on the provisions of the
Evidence Act 1995. As the Commonwealth Act and the New South Wales Act are, for our purposes,
identical, we will consider the Commonwealth Act. The older case law remains relevant as an aid to
understanding the new provisions.
The matters considered include the manner and form in which evidence can be presented to the court,
the matters which are susceptible of proof as defined by the inclusionary and exclusionary rules, and
the tests to be applied in determining whether sufficient evidence has been introduced. Students will
be alerted to the ongoing debates that impact on this area of the law, and specifically to the way in
which the law impacts on women.
At this stage of the program, students are expected to possess the skills necessary to answer
problem, case note and essay questions, and are encouraged to form and express their own views on
the subject matter of the course.
LECTURERS
Professor Elisabeth Peden, BA Hons (Sydney), LLB Hons (Sydney), PhD (Cambridge)
Elisabeth Peden is a barrister practising at the NSW Bar and Professor of Law at the University of
Sydney. She has worked as an associate to Justice Lockhart (Federal Court) and Justice McHugh
(High Court). Elisabeth studied languages and law at the University of Sydney before completing a
PhD at the University of Cambridge. She is the co-author of several books on evidence law.
Ms Miiko Kumar, BA, LLB (Sydney)
Miiko Kumar is a graduate of the University of Sydney, where she is now a senior lecturer in the
Faculty of Law. She is also a practising barrister. Miiko was admitted as a solicitor in 1996 and called
to the Bar in 2001. As a solicitor, she worked at the Office of the Director of Public Prosecutions
(NSW) and Crown Solicitor’s Office. She was a law reform officer at the Australian Law Reform
Commission. She is the co-author of several books on evidence law.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
2
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject. The Law Extension Committee
(LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners
to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics: General aspects;
Forms of evidence; Admission and use of evidence and Proof.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed the cases and statutory provisions referred to in the Law Extension
Committee's course outline.
All queries in relation to examinations should be directed to the Legal Profession Admission Board.
3
LECTURE PROGRAM
Evening lectures will be held on Monday nights, commencing at 6.00pm, in New Law School Lecture
Theatre 026 (New LSLT 026). For details as to the location of this venue, refer to page 53 of the
Course Information Handbook for a map of the University of Sydney main campus.
This program is a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
WEEK
TOPIC
KEY READING
1
9 Nov
General and Introductory
2
16 Nov
Testimonial Evidence I
SH v The Queen [2012] NSWCCA 79
3
23 Nov
Testimonial Evidence II
4
30 Nov
Documentary and
Other (Real) Evidence
Payless Superbarn Pty Ltd v O’Gara (1990) 19
NSWLR
Khamis v The Queen [2010] NSWCCA 179
Evans v The Queen
5
7 Dec
Relevance and
Discretionary Exclusion
Papakosmos v R
Smith v The Queen
6
14 Dec
Hearsay
Lee v The Queen
Graham v The Queen
Study Break: Friday 18 December 2015 – Sunday 10 January 2016
7
11 Jan
Opinion Evidence
Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22
June 2011)
Lithgow City Council v Jackson [2012] HCA 36
Honeysett v The Queen [2014] HCA 29
8
18 Jan
Admissions
Em v The Queen (2007) 232 CLR 67 (KOP
289)
9
25 Jan
10
1 Feb
11
8 Feb
Tendency and Coincidence Evidence
Pfennig v The Queen
Credibility
Adam v The Queen
Privileges
Esso Australian Resources Ltd v Federal
Commission of Taxation
12
15 Feb
Proof
Jones v Dunkel (1959) 101 CLR 298
Weissensteiner v The Queen (1993) 178 CLR
217
Dyers v The Queen (2002) 210 CLR 283
4
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend on the
understanding that weekend school classes aim to cover the same material as provided in weekly
lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These
programs are a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic
and to encourage further reading. You should not rely on them alone.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Saturday 28 November 2015: noon – 4.00pm in New Law School Lecture Theatre 024
(New LSLT 024)
12.10pm-1.10pm
General & Introductory
1.25pm-2.40pm
Testimonial Evidence I
SH v The Queen [2012] NSWCCA 79
2.45pm-3.55pm
Testimonial Evidence II
Payless Superbarn Pty Ltd v O’Gara (1990)
19 NSWLR
Khamis v The Queen [2010] NSWCCA 179
Sunday 29 November 2015: 8.00am – noon in New Law School Lecture Theatre 024
(New LSLT 024)
8.00am-9.20am
Documentary and
Other (Real) Evidence
Evans v The Queen
9.30am-10.40am
Relevance & Discretionary
Exclusion
10.45am-11.45am
Hearsay
Papakosmos v R
Evans v The Queen
Smith v The Queen
Lee v The Queen
Weekend School 2
TIME
MAJOR TOPICS
KEY READING
Saturday 30 January 2016: noon – 4.00pm in New Law School Lecture Theatre 024
(New LSLT 024)
12.10pm-1.10pm
Opinion Evidence
Dasreef Pty Ltd v Hawchar [2011] HCA 21
(22 June 2011)
Lithgow City Council v Jackson [2012] HCA
36
Honeysett v The Queen [2014] HCA 29
1.25pm-2.40pm
Admissions
Em v The Queen (2007) 232 CLR 67 (KOP
289)
Pfennig v The Queen
Tendency & Coincidence
Evidence
2.45pm-3.55pm
Credibility
Adam v The Queen
5
Sunday 31 January 2016: 8.00am – noon in New Law School Lecture Theatre 024
(New LSLT 024)
8.00am-9.20am
Privileges
Esso Australian Resources Ltd v Federal
Commission of Taxation
9.30am-10.40am
Proof
Jones v Dunkel (1959) 101 CLR 298
Weissensteiner v The Queen (1993) 178
CLR 217
Dyers v The Queen (2002) 210 CLR 283
10.45am-11.45am
Revision
Examination Paper September 2007
TEXTS AND MATERIALS
Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials


Kumar, Odgers, Peden, Uniform Evidence Law: Commentary and Materials, 5th ed. Thomson
Reuters, 2015 (KOP)
Evidence Act 1995 (Cth) or (NSW)
Reference Materials









Criminal Procedure Act 1986 (NSW)
Stephen Odgers, Uniform Evidence Law, (11th ed 2014) (hereafter “Odgers”)
KOP is a companion volume to Odgers. Students can access this resource in electronic format
from the Library’s webpage. To connect go to
http://www.library.usyd.edu.au/databases/law_databases.html and scroll down to Uniform
Evidence Law.
Andrew Hemming, Miiko Kumar and Elisabeth Peden, Evidence: Commentary and Materials (8th
ed, 2013)
Andrew Ligertwood and Gary Edmond, Australian Evidence, (5th ed, 2010)
Jeremy Gans and Andrew Palmer, Uniform Evidence, (2nd ed, 2014)
J D Heydon, Cross on Evidence, (10th ed, 2015)
Students can
also
access this resource
electronically.
To connect
go to
http://www.library.usyd.edu.au/databases/law_databases.html and scroll down to LexisNexis.au.
Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence: Annotation and
Commentary on the Uniform Evidence Acts, (2 nd ed, 2009)
Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law
Reform Commission, 'Uniform Evidence Law' (ALRC Report No 102, NSWLRC Report 112, VLRC
Final Report, Australian Law Reform Commission, New South Wales Law Reform Commission,
Victorian Law Reform Commission, 2005).
This report can be accessed from
http://www.alrc.gov.au.
Australian Law Reform Commission, Evidence Interim Report (No 26) 2 vols (1985) Via AustLII
Evidence Final Report (No 38) (1987) Via AustLII
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the
Webcampus including links to relevant cases and legislation in the Course Materials section.
6
COMPULSORY ASSIGNMENT
In Evidence, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date (no
extensions will be granted), and achieve a grade of at least 50%. Refer to the Guide to the
Presentation and Submission of Assignments for the assignment grading and assessment
criteria. Students who fail to satisfy the compulsory requirements will be notified through the
Results screen on the Webcampus before the examination period of their ineligibility to sit the
examination in this subject. The maximum word limit for the assignment is 2000 words
(inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
Completed assignments should be lodged through the LEC Webcampus, arriving by 11:59pm on the
following date:
Compulsory Assignment
Wednesday 16 December 2015
(Week 6)
ASSIGNMENT QUESTION
To obtain a copy of the Evidence assignment questions for the Summer Session 2015-16,
please follow the instructions below:
1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2. Then go into the Webcampus, select the Course Materials section and click on the link to the
assignment questions for this subject.
7
PRESCRIBED TOPICS AND COURSE OUTLINE
1.
GENERAL ASPECTS
KOP Ch 1.
1.1
The trial process
SH v The Queen [2012] NSWCCA 79 (KOP
[2.110])
R v Khan (SCNSW Hidden J 22/11/95
unreported) (KOP [2.150])
Australian Crime Commission v Stoddart
(2011) 282 CLR 620 (KOP [2.160])
EA ss 11, 26-29.
(c) Sworn and unsworn evidence
1.2
Background to the Evidence Act 1995
(Cth) and (NSW)
Australian Law Reform Commission, Evidence
Interim Report (No 26) 2 vols (1985)
Evidence Final Report (No 38) (1987)
Australian Law Reform Commission, New
South Wales Law Reform Commission,
Victorian Law Reform Commission, 'Uniform
Evidence Law' (ALRC Report No 102 Via
AustLII, NSWLRC Report 112 Via AustLII,
VLRC Final Report, Australian Law Reform
Commission, New South Wales Law Reform
Commission,
Victorian
Law
Reform
Commission, 2005).
Evidence Act 1995 (Cth) (‘EA’) Evidence Act
1995 (NSW) (‘EA’)
1.3 Relationship between the Evidence Acts,
the common law and other statues
EA ss 8, 9
1.4 Taking Objections
Criminal Appeal Rules r 4
1.5 Dispensing with the Rules of Evidence
EA s 190
1.6 Voir dire
2.
FORMS OF EVIDENCE
(1)
Testimonial evidence
(a) Calling a witness
EA ss 11, 26
R v Kneebone (1999) 47 NSWLR 450 (KOP
[2.50])
Velevski v The Queen (2002) 76 ALJR 402
(KOP [2.60])
Evidence Act, ss 21-25
(d) Questioning of witnesses
EA ss 26-29, 37
GPI Leisure Corp Ltd v Herdman Investments
(1990) 20 NSWLR 15 (KOP [2.190])
(e) Evidence in chief
Evidence Act, s 37
Ryland v QBE Insurance (Australia) Ltd [2013]
NSWCA 120 (KOP [2.220)
(f)
Reviving memory
Evidence Act, ss 32-35
Dodds v R [2009] NSWCCA 78, (KOP 2.270)
(g) Unfavourable witnesses
EA s 38
R v Hogan [2001] NSWCCA 292 (KOP [2.290])
R v Le (2002) 130 A Crim R 44 (KOP [2.3000])
(h) Cross-examination
EA ss 40-42, 38
Libke v The Queen (2007) 230 CLR 559 (KOP
[2.320])
(i)
The rule in Browne v Dunn
EA s 46
Precision Plastics Pty Ltd v Demir (1975) 132
CLR 362 (KOP [2.360])
Payless Superbarn Pty Ltd v O’Gara (1990) 19
NSWLR (KOP [2.370])
R v Birks (1990) 19 NSWLR 677 (KOP [2.380])
Khamis v The Queen [2010] NSWCCA 179
(KOP [2.400])
(j) Cross examination on documents
EA ss 43-45
(b) Competence and compellability
(k) Re-examination and re-opening
EA ss 12-20
ALRC 102 (KOP [2.80]-[2.100], [2.110]-[2.130])
EA, s 39
8
R v Chin (1985) 157 CLR 671 (KOP 2.450)
Urban Transport Authority of NSW v Nweiser
(1992) 28 NSWLR 471 (KOP 2.460)
Aytugrul v The Queen [2012] HCA 15 (KOP
[6.140])
(c) Illegally and improperly obtained evidence
(2)
Documentary evidence
Evidence Act, ss 47-51
NAB v Rusu (1999) 47 NSWLR 309
Australian
Competition
and
Consumer
Commission v Air New Zealand Ltd (No 1)
[2012] FCA 1355
Evidence Act, ss 138-139
EA ss 138, 139
Robinson v Woolworths [2005] NSWCCA 426
(KOP [6.170])
DPP v Marijancevic [2011] VSCA 355 (KOP
[6.180])
(3)
(3)
Hearsay
Real evidence
(a) The general rule
EA, ss 52-54
R v Milat (NSWSC Hunt J at CL 12/4/96
unreported) (KOP [4.40])
Evans v The Queen (2007) 235 CLR 521
(KOP [4.50])
R v Skaf (2004) 60 NSWLR 86 (KOP [4.60])
Kozul v The Queen (1981) 147 CLR 221 (KOP
[4.80])
EA ss 59, 60, 136
Subramaniam v Public Prosecutor [1956] 1
WLR 965 (KOP [7.30])
Kamleh v The Queen (2005) 213 ALR 97
(KOP [7.40])
Lee v The Queen (1998) 195 CLR 594 (KOP
[7.60])
(b) Evidence used for non-hearsay purpose
3.
(1)
ADMISSION AND USE OF EVIDENCE
Relevance
KOP Ch 5
EA ss 55-58
Smith v The Queen (2001) 206 CLR 650 (KOP
[5.40])
Evans v The Queen (2007) 235 CLR 521
(KOP [5.60])
EA, s 60
Lee v The Queen (1998) 195 CLR 594 (KOP
238)
Quick v Stodland Pty Ltd {1998] 87 FCR 371
(KOP 242)
Jango v Northern Territory of Australia (No 4)
(2004) 214 ALR 608 (KOP [7.80])
(c) Exceptions: First-hand hearsay
(i) General
(2)
Discretionary exclusion
(a) Generally
EA s 135
Ordukaya v Hicks [2000] NSWCA 180 (KOP
[6.50])
La Trobe Capital & Mortgage Corporation
Limited v Hay Property Consultants Pty Ltd
(2011) 190 FCR 299 (KOP [6.70])
(b) Prejudicial evidence in criminal cases
EA s 137
R v Shamouil (2006) 66 NSWLR 228 (KOP
[6.90])
Dupas v The Queen [2012] VSCA 328 (KOP
[6.100])
R v Sood [2007] NSWCCA 214 (KOP [6.110])
R v Dann (2000) 123 A Crim R 506 (KOP
[6.130])
EA ss 61, 62, 67
Caterpillar Inc v John Deere Limited (No 2)
(2000) 181 ALR 108 (KOP [7.100])
The Council of the New South Wales Bar
Association v Franklin [2014] NSWCA 329
(KOP [7.110])
(ii) Civil cases:
available
maker
available/not
EA, ss 63, 64
Caterpillar Inc v John Deere Limited (No 2)
(2000) 181 ALR 108 (KOP 244)
(iii) Criminal cases: maker available/not
available
EA, ss 65, 66
Williams v The Queen (2000) 119 A Crim R
490 (KOP [7.130])
9
Harris v The Queen [2005] NSWCCA 232
(KOP [7.140])
Munro v R [2014] ACTCA 11 (KOP [7.540])
Baker v The Queen (2012) 245 CLR 632 (KOP
[7.160])
Graham v The Queen (1998) 195 CLR 606
(KOP [7.180])
R v XY [2010] NSWCCA 181 (KOP [7.190])
LMD v R [2013] VSCA 164 (KOP [7.200])
I S J v The Queen [2012] VSCA 321 (KOP
[7.210])
Clay v The Queen [2014] VSCA 269(KOP
[7.220])
(d) Business records
EA, s 69
Lancaster v The Queen [2014] VSCA 333
(KOP [7.240])
Thomas v State of NSW [2008] NSWCA 316
(KOP [7.250]
Lithgow City Council v Jackson (2011) 281
ALR 223 (KOP [7.260]
Australian
Competition
and
Consumer
Commission v Air New Zealand Ltd (No 1)
[2012] FCA 1355 (KOP [7.270]
Evidence Act, ss 81-83
(b)
Inferred admissions
Edwards v R (1993) 178 CLR 193
(c)
Admissions in criminal cases
Criminal Procedure Act 1986 s281 via AustLII
EA ss 81-90 and ss 138-139
R v Zhang [2000] NSWSC 1099 (KOP [9.50]
and [9.80])
Kelly v The Queen [2004] HCA 12; 218 CLR
216 (KOP [9.70])
R v Moffatt (2000) 112 A Crim R 201 (KOP
[9.90])
R v McLaughlan (2008) 218 FLR 158 (KOP
[9.100])
R v Helmhout (2001) 125 A Crim R 257 [9.120]
Foster v The Queen (1993) 113 ALR 1 (KOP
[9.140])
R v Swaffield; Pavic v The Queen (1998) 192
CLR 159 (KOP [9.150])
Em v the Queen [2007] HCA 46 (KOP [9.160]
Petty and Maiden v The Queen (1991) 173
CLR 95 (KOP [9.180])
(e) Other exceptions (not examinable)
(6)
Tendency and coincidence
(a)
Generally
EA, ss 70, 71, 72, 73-74
(4)
Opinion evidence
(a)
Generally
EA, ss 76-78
Lithgow City Council v Jackson [2012] HCA 36
(KOP 282)
(b)
EA ss 94-101
R v AE [2008] NSWCCA 52 (KOP [10.60])
RHB v The Queen [2011] VSCA 295 (KOP
[10.70])
DSJ v The Queen; NS v The Queen [2012]
NSWCCA 9 (KOP [10.80])
Velkoski v The Queen [2014] VSCA 121
Saoud v The Queen [2014] NSWSCCA 136
Expert
EA ss 79, 80
HG v The Queen (1999) 160 ALR 554 (KOP
[8.60])
Honeysett v The Queen [2014] HCA 29 (KOP
[8.70])
Dasreef Pty Limited v Hawchar (2011) 243
CLR 588 (KOP [8.80])
Kyluk Pty Ltd v Chief Executive, Office of
Environment and Heritage [2013] NSWCCA
114 (KOP [8.90])
Tuite vThe Queen [2015] VSCA 148
(7) Character
(5)
Admissions
(8) Past sexual history of the complainant in
sexual assault cases
(a)
General
KOP Ch 12
EA ss 104, 108B, 109-112, 192, 192A
R v Zurita [2002] NSWCCA 22 (KOP [12.30])
Braysich v The Queen (2011) 243 CLR 434
(KOP [12.40])
Melbourne v The Queen (1999) 198 CLR 1
(KOP [12.60])
Stanoevski v The Queen (2001) 202 CLR 115
(KOP [12.90])
DPP v Newman (a Pseudonym) [2015] VSCA
25 (KOP [12.70])
Criminal Procedure Act 1986 (NSW), s 293
10
Evidence Act, ss 102-108
Field v Commissioner for Railways (New South
Wales) (1955) 99 CLR 285
State Rail Authority of NSW v Smith (1998) 45
NSWLR 382
(a) The credibility rule
(d)
EA, ss 101A, 102
Palmer v The Queen (1998) 151 ALR 16 (KOP
11.30)
EA, ss 129-130
Sankey v Whitlam (1978) 142 CLR 1
Attorney General v Kaddour [2001] NSWCCA
456
(9)
(b)
Credit evidence
Attacking a witness’ credit
EA, ss 103, 104, 106; 38, 43-44; 192.
Adam v The Queen (2001) 207 CLR 96 (KOP
[11.50])
Col v The Queen [2013] NSWCCA 302 (KOP
[11.90
(c)
Public interest
Supporting witness' credit
EA ss 102, 108
R v Ngo (2001) 122 A Crim R 467 (KOP
[11.110])
R v Whitmore (1999) 109 A Crim R 51 (KOP
[11.120])
Nikolaidis v The Queen [2008] NSWCCA 323
(KOP [11.130])
Graham v The Queen (1998) 195 CLR 606
(KOP [7.150])
Dupas v The Queen (2012) 218 A Crim R
507(KOP [11.140])
M A v The Queen [2013] VSCA 20 (KOP
[11.150])
De Silva v The Queen [2013] VSCA 20 (KOP
[11.160])
4.
PROOF
(1)
Burden and standard of proof
EA, ss 140-142
Qantas Airways Ltd v Gama (2008) 167 FCR
537 (KOP [15.50])
Green v The Queen (1971) 126 CLR 28 (KOP
[15.70])
Shepherd v The Queen (1990) 170 CLR 573
(KOP [15.80])
(2)
Prima facie case
Justices Act, s 41
May v O’Sullivan (1955) 92 CLR 654 (KOP
19.20)
Doney v R (1990) 96 ALR 539 (KOP 19.30)
(3)
Facilitation of proof
(a)
Presumptions
Evidence Act, pt 4.3
(b) Judicial notice
(10) Privileges
(a)
Client legal privilege
EA, ss 117-126
Esso Australian Resources Ltd v Federal
Commission of Taxation (2000) 168 ALR 123
Mann v Carnell (1999) 168 ALR 86
Kang v Kwan [2001] NSWSC 698
EA, ss 143-145
Woods v Multi-Sport Holdings Pty Ltd (2002)
76 ALJR 483 (KOP 16.30)
Aytugrul v The Queen [2012] HCA 15 (KOP
[16.40])
MALUKA V MALUKA [2011] FAMCAFC 72
(KOP [16.50])
(d) Judgments and convictions
(b)
Miscellaneous
EA, ss 126A-I, 127-128, 187
Director General, Dept of Community Services
v D [2006] NSWSC 827
R v Lodhi (2006) 199 FLR 328
(c)
Negotiations
EA, s 131
EA , ss 91-93
Gonzales v Claridades (2003) 58 NSWLR
R 188 (KOP)
(e) Inferences from absence of evidence
Jones v Dunkel (1959) 101 CLR 298 (KOP
[17.90])
EA s 20
Weissensteiner v The Queen (1993) 178 CLR
217 (KOP [17.110])
11
Azzopardi v The Queen (2001) 205 CLR 50
(KOP [17.120])
Dyers v The Queen (2002) 210 CLR 283 (KOP
[17.130])
(4)
Unreliable evidence
(a)
Generally
EA ss 164-165, 165A and 165B, and s 294 of
the Criminal Procedure Act
R v Flood [1999] NSWCCA 198 (KOP [18.30])
R v Stewart (2001) 124 A Crim R 371 (KOP
[18.40])
Longman v The Queen (1989) 168 CLR 79
(KOP [18.60])
CMG v The Queen [2011] VSCA 416 (KOP
[18.90])
PT v The Queen [2011] VSCA 43 (KOP
[18.110])
Greensill v The Queen [2012] VSCA 306 KOP
[18.120])
(b)
Identification
Evidence Act, ss 113-116
Alexander v The Queen (1981) 145 CLR 395
(KOP 489)
Note:
The cases on the outline are
examinable. They are not the only Evidence
cases which make relevant points.
Your
lecturers may refer to other cases, you are not
required to read them or to refer to them in
your answers.
12
LECTURE OUTLINES
LECTURE 1: General and Introductory
Topic: General and Introductory
Issues: History of the introduction of the Evidence Act 1995. The relationship between the Evidence Act
and the common law. The structure of the Evidence Act. An overview of the trial process.
Structure:




Introduction of Evidence Act:

Law Reform Commission Report (ALRC 38 of 1997);

Adoption by Commonwealth, NSW, Victoria, ACT;

Review of its operation (ALRC 102 of 2005).
Relationship between Evidence Act and common law:

Is the Evidence Act meant to be a code?;

Continued scope of operation of the common law.
Structure of the Evidence Act:

Chapter 1: Jurisdictional and other matters;

Chapter 2: Form of evidence;

Chapter 3: Admissibility of evidence;

Chapter 4: Standards of proof;

Chapter 5: Miscellaneous.
Overview of trial process:

Pre-trial processes;

Court procedure – examination in chief/cross-examination;

Role of judge versus jury;

Appeal process.
Desired Outcomes: The student should have an overview of the structure of the Evidence Act and its interrelationship with the common law. Secondly, the student should have a sufficient understanding of the trial
process to allow them to read and understand the operation of the provisions of the Evidence Act in the
context of a hearing.
13
LECTURES 2 & 3: Testimonial Evidence
Topic: The form and manner in which testimonial evidence may be adduced in court.
Issues: Competence and compellability of witnesses, general rules about adducing evidence from
witnesses, particular rules concerning examination in chief, cross-examination, re-examination and reopening.
Structure:

Rule: Every person is presumed to be both competent and compellable to give (sworn) evidence:
section 12.

Exceptions:
1.
persons not competent to give evidence: section 13;
2.
some persons may give un-sworn evidence: section 13;
3.
persons competent but not compellable: sections 15, 16, and 17;
4.
relatives in criminal proceedings – persons competent but may not have to give
evidence: section 18, R v Khan.
 General Rules:





the power of the court to control proceedings and question: sections 11 and 26;

who can question witness - parties, judge juror; sections 11 and 27;

who can call witnesses? R v Apostilides; order in which witnesses called

role of interpreter:, sections 30 and 31;

refreshing memory in court and out of court: sections 32, 33, 34 and 35;

order of examination in chief, cross-examination and re-examination: section 28.
Examination in Chief:

purpose sought to be achieved;

no leading questions and exceptions to the rule: section 37 and definition of “leading
question”;

refreshing memory in court: sections 32 and 33.
Cross Examination:

purpose sought to be achieved R v Chin;

leading questions: section 41;

court power to restrict questions: sections 11, 41 and 42;

refreshing memory out of court: sections 34 and 35;

the Rule in Browne v Dunn and sanctions for breach: Payless Superbarn, R v Birks and
section 46.
Re-examination:

purpose of re-examination;

no leading questions: section 37;

scope of re-examination: section 39.
Re-opening:
Desired Outcomes: An understanding of the limitations, as to who may be competent and compellable, to
give evidence. A knowledge of the rules as to dealing with witnesses generally and the specific rules in
respect of examination in chief, cross-examination and re-examination.
14
LECTURE 4: Documentary and Other (Real) Evidence
Topic: The form in which the contents of documents may be adduced in evidence. The adducing of other
forms of evidence (excluding testimonial and documentary evidence).
Issues:
Documentary Evidence:
The “original document rule” abolished; sections 51 and 48(2), and definition of unavailability of
documents in Clause 5 of Part 2 of Dictionary.
Definition of “document” to mean any record of information; Part 1 of the Dictionary.
Various means of establishing the contents of a document are contained in section 48(1):

tendering the document;

adducing evidence of an admission as to contents of a document (paragraph (a));

tendering a copy produced by a device (paragraph (b));

if the document is an article or thing by which words are recorded and capable of being
reproduced as sound – tendering a transcript (paragraph (c));

if the document is an article or thing in which words recorded in code – tendering a
transcript (paragraph (c));

if the document is an article or thing in which information is stored such that a device
must be used to retrieve the information (paragraph (d));

if the document is a business record – tendering a copy of or extract or summary of the
record (paragraph (e));

if the document is a public document – tendering a document printed by government
printer or similar authority.
Real (or Other Evidence):

general law to apply except otherwise varied by Evidence Act, section 52;

demonstrations, experiments and inspection (“views”) dealt with by section 53 –
application see R v Marko;

views now part of the evidence: section 54 – effect is that inspections may now be
referred to in proceedings (previously inspections were excluded from the evidence at
common law).
Desired Outcomes: The students recognize that prior to considering the admissibility of evidence it is
necessary to consider the form in which evidence may be adduced. Particularly important are the rules
governing the adducing of oral evidence and the various means by which information stored in electronic
media is able to be adduced in court.
15
LECTURE 5: Relevance and Discretionary Exclusion
Topic: Relevancy and discretionary exclusion.
Issues: The threshold test of relevancy. The circumstances in which evidence, although relevant may be
excluded by the court pursuant to its discretionary powers.
Structure:
Test of relevancy: section 55
Discretionary exclusion:

General – sections 135 and 136.

Prejudicial evidence in criminal trials – section 137 – examples:


R v Shamouil;

R v Sood.

Difference between Victoria and NSW.

High Court to hear appeal in December (Murdoch)
Illegally and improperly obtained evidence:

Robinson v Woolworths;
Desired Outcomes: An understanding that the test of relevancy imposes virtually no threshold test on
admissibility but is subject to the discretionary powers of the court. An appreciation of the factors to be
considered by the court in exercising its discretionary powers. The procedure for challenging the
admissibility of the evidence.
16
LECTURE 6: Hearsay
Topic: Hearsay
Issues: Defining the rule against hearsay. The basis for the rule. The differences between the rule against
hearsay as contained in the Evidence Act and the previous common law position. Exceptions to the rule
against hearsay.
Structure:
The hearsay rule: section 59 and the effect of section 60 (and Dictionary):

Subramanian v Public Prosecutor;
Exceptions:


First-hand hearsay: sections 62 to 68;

Civil cases – maker not available – Caterpillar v John Deere;

Civil cases – maker available – Caterpillar v John Deere;

Criminal cases – maker not available;

Criminal cases – maker available.
Business records: section 69
Other exceptions: sections 60, 70 to 71, 73 to 75.
Desired Outcomes: The students are able to recognize when evidence is being adduced for the hearsay
purpose (as evidence of the truth of the contents of the representation) as compared to other purposes.
Where the hearsay rule applies the students should be familiar with the various exceptions that may apply to
allow the evidence to be adduced despite it being of a hearsay nature.
17
LECTURE 7: Opinion Evidence
Topic: Admissibility of opinion evidence
Issues: The form of evidence that will constitute an opinion. The exceptions to the prohibition on opinion
evidence i.e. lay opinion and expert opinion.
Structure:
Opinion Rule (section 76): What is an opinion? An inference drawn from observed and communicable data;
see Allstate Life Insurance.
Exceptions to the Rule:
(1) Evidence relevant for another purpose (section 77). For example, evidence of out of court
opinion is admissible to establish a defamatory statement;
(2) Lay opinion (section 78);
examples of matters in respect of which lay opinion has been allowed by the courts. The
basis for allowing lay opinions to be adduced in evidence.
(3) Expert opinion (section 79);
Expert evidence should be allowed where inexperienced persons cannot form a correct
judgment without such assistance: Clark v Ryan.
Expert evidence may be adduced where:

The subject matter is a recognised area of expertise;

The witness has knowledge and skill in area.
No definition of what constitutes a “recognised area of expertise” in Act. However courts have
discretion under section 135 if not a recognised field of expertise.
Expert does not require formal study, experience may be sufficient.
Other aspects:

Opinion must be “wholly or substantially” based on expertise and underlying facts established
by admissible evidence: see HG v R, and section 37(1)(e). See Dasreef v Hawchar.

Once pre-conditions of admissibility satisfied and opinion admitted a question of weight only
Abolishment of common law rules: section 80:

Ultimate issue rule:;

Matters of common knowledge:;

Note the potential application of section 135 in respect of the operation of both of the
provisions.
Desired Outcomes: Be able to recognise opinion evidence. To determine if lay opinion may be given. To
determine if an area for expert evidence, and the means of, and consequences of, the admission of expert
evidence. Consequences of abolition of common law exclusionary rules.
18
LECTURE 8: Admissions
Topic: Admissibility of admissions
Issues: Admissions admissible as an exception to the hearsay rule. The nature of admissions being either
express or inferred (i.e. consciousness of guilt). The rules applicable to civil and/or criminal proceedings that
provide for the exclusion of admissions.
Structure:
1.
The rule on admissibility of admissions: sections 81 and 82:

Meaning of admission – see Dictionary;

Meaning of representation in a document – see Dictionary;

Admission an exception to the hearsay rule and opinion rule, but qualification is that admission
must be first-hand hearsay;
2.
Express statements
3.
Inferred admissions (consciousness of guilt)

Evasive answering of questions:

Silence:

Failure to disclose a defence:
- Petty and Maiden v R

Lies constituting an admission:
-
Edwards v R
 Exclusions of admissions:
-
sections 83-90, 139;
-
Criminal Procedure Act: section 281;
-
Em v R;
-
R v Zhang;
-
R v Moffatt;
-
R v Swaffield; Pavic v The Queen.
Desired Outcomes: An ability to recognise representations that constitute admissions. A familiarity with
those provisions that exclude admissions from evidence. An understanding of the discretionary powers the
courts possess to exclude admissions and the factors relevant to the exercise of those powers.
19
LECTURE 9: Tendency and Coincidence Evidence
Topic: Admissibility of evidence pointing to tendency or coincidence
Issues: Nature of evidence of similar facts or acts. Dangers in inferring from such evidence. Criteria used in
evaluating admissibility.
Structure:

Introduction: The relevance of the evidence.

Statutory framework – general:

Tendency rule – section 97;

Coincidence rule – section 98;
-

Significant probative value
Further restrictions criminal matters;
- Probative value must substantially outweigh prejudicial effect – section 101

Application, scope and procedure – sections 94 to 96, 99 to 100.
 The courts and application of the rule in criminal proceedings involves (sections 97/98 and 101):
-
Pfennig – “no rational explanation test” at common law;
-
Pfennig test applicable under Evidence Act? R v Ellis;
-
Hoch; an example of other rational explanation diminishing probative value;
 Civil case – relevant factors in assessing probative value: Jacara Pty Ltd v Perpetual Trustees (WA).
 Sexual Assault Cases:

Criminal Procedure Act: section 293.
Character evidence in criminal proceedings – admissible as going to likelihood of accused having
committed the offence; section 110 and Melbourne v The Queen.
Desired Outcomes: Application of weaknesses and strengths of tendency and coincidence evidence.
Knowledge of statutory framework and definitions. Understanding of principles developed through case law.
Ability to argue for and against various judicial approaches. Some grasp of the tension between probative
and prejudicial value.
20
LECTURE 10: Credibility
Topic: Admissibility of evidence relating to the credibility of witnesses
Issues: The rule on admissibility of evidence relating to the credit of witnesses. Exceptions to the rule
applicable to cross-examination and re-examination. Additional limitations as to cross-examination on credit
issues in criminal matters. Procedure requirements in cross-examination on credit. Procedure for and
implications of having a witness declared hostile.
Structure:

The credibility rule: sections 101A and 102:
-


Adam v R resulted in s 101A and amendment to s 102.
Exception to the rule on cross-examination – section 103:
-
Evidence must substantially affect the assessment of the credit of a witness;
-
Procedures to be followed with prior inconsistent statements – sections 43, 44 and 45;
-
Additional restrictions in criminal matters – section 104.
The finality rule – Palmer v The Queen:
-
Exception to the finality rule; section 106.

Re-establishing credibility of own witness – section 108:

Attacking own witness’ credit:
 The rule contained in section 38.
Desired Outcomes: That students recognise the limits of cross-examination on matters of credit. The
procedures involved in cross-examining using prior inconsistent statements. The manner of re-establishing
credibility of witnesses. The circumstances in which a witness may be declared unfavourable by the court.
21
LECTURE 11: Privileges
Topic: Privileges
Issues: The Evidence Act provides for the claiming of a number of privileges that were previously able to be
claimed at common law i.e., client legal privilege, privilege against self-incrimination, privilege for settlement
negotiations and public interest privilege. Generally these privileges under the Evidence Act represent a
codification of the privilege previously available at common law. However, the Evidence Act also in certain
circumstances confers a qualified privilege where none previously existed at common law i.e., for
communications in respect of professional confidential relationships, and communications of “protected
communications” involving sexual assault victims. The qualified privilege for relatives in criminal proceedings
should not be overlooked when considering this topic i.e., section 18.
Structure:

Client legal privilege (sections 117-126):

sections 118-120 confer the privilege: broadly, the privilege covers communications where the
dominant purpose of the communication is in respect of legal advice or preparation in the
course of actual or pending litigation;

the dominant purpose test is the same as applies at common law – Esso Australia v FCT;

sections 121-126 outline the circumstances in which the privilege may be lost (consent, fraud
etc.); Mann v Carnell and Kang v Kwan.

Professional confidential relationships (sections 126A-F) – confers a qualified privilege where there
is a professional confidential relationship (e.g. doctor/patient, journalist/source, social worker/client)
provided the harm outweighs the desirability of the evidence being given.

Sexual assault communications (sections 126G-I) – excludes from civil proceedings any “protected
confidences” (e.g. between a counsellor and sexual assault victim) as defined in the Criminal
Procedure Act.

Religious confessions (section 127) – provided the confession is part of the ritual of the church –
the privilege is conferred on the clergy not the person making the confession.

Self incrimination (section 128) – confers privilege on a witness from answering questions if the
answer may expose the witness to an offence or civil penalty – note the availability of “certificates” if
evidence is given as a means of protection to the witness.

Public interest immunity (sections 129 and 130): confers a qualified privilege in respect of matters
of state e.g., cabinet deliberations (Sankey v Whitlam), security matters, police informers etc. (AG v
Kaddour & Turkmani).

Settlement negotiations (section 131) – in order to promote settlement of disputes without resorting
to litigation such communications are privileged – as to the scope, see prior to the Evidence Act,
Field v Commissioner of Railways (NSW).

Note qualified privilege for relatives of accused in criminal proceedings – section 18.
Desired Outcomes: Students should be able to identify when the privilege is available (including the factors
the Court may have to take into account before determining if the privilege is available), the scope of the
privilege and the circumstances in which the privilege may be lost.
22
LECTURE 12: Proof
Topic: Proof
Issues: This topic deals with the burden and standard of proof, the consequences in criminal cases where
the Crown has not at the close of its case established a prima facie case, how matters may be proved
without evidence being adduced and the way in which the Evidence Act deals with evidence that is of a kind
that is unreliable.
Structure:

Burden and standard of proof:

the legal burden is generally on the plaintiff/applicant to prove their case to the requisite
standard once all of the evidence has been adduced;

the standard in civil matters is on the balance of probabilities: section 140: where the finding is
serious even in civil proceedings.

the standard of proof in criminal matters is “beyond reasonable doubt”: section 141. The court
should not seek to explain the expression; Green v R;

other questions to be determined e.g., admissibility of evidence to be determine on “balance of
probabilities” - section 142.

Prima facie case: the Crown has an obligation to establish a prima facie case at the close of the
Crown case i.e., taking the Crown case at its highest, is it capable of securing a conviction – for
example of application of test, see May v O’Sullivan. The Court is not to dismiss the case merely
because in the view of the trial judge the evidence of the Crown is weak; Doney v R.

Presumptions: the Evidence Act contains a number of rebuttable presumptions in Part 4.3 i.e., if
certain facts are proved (e.g., the letter was mailed) the Court is able to presume (albeit rebuttable)
another fact is proved without evidence (e.g., the letter was delivered to the addressee with 4
working days) – these presumptions are useful in practice and often to prove the matter the subject
of the presumption would be difficult and expensive (and generally not really in dispute).

Judicial notice – sections 143-145: certain matters are so notorious that the Court may take judicial
notice of the matters without evidence to prove the fact e.g. Sydney Harbour Bridge is located in
Sydney.

Judgments and convictions – sections 91-93: evidence of a decision or findings on facts by other
courts is not admissible evidence to prove an issue in the proceeding.

an exception – in civil proceedings convictions for offences (not being appealed from) may be
adduced; cf overturning decision in Hollington v Hewthorn. The weight to be given to such
evidence is uncertain.

Inferences from absence of evidence – common law rule (the rule in Jones v Dunkel) that if a party
should have called a witness (or, adduce documents) but did not an adverse inference may be
drawn against the party unless some explanation for failure to call the witness (or adduce the
documents); see section 55(2)(c) allowing evidence to explain failure to adduce evidence is an
implied recognition of the rule in the Evidence Act. The rule has no application against an accused
in criminal proceedings; Dyers v R no obligation on the accused to adduce any witnesses, as the
Crown is responsible for adducing all relevant witnesses.

Unreliable evidence:
 with unreliable evidence no requirements for corroboration (section 164), but if evidence
sought to be adduced is unreliable evidence (falling within the non-exhaustive list in section
165) or otherwise unreliable, the Court should give a warning to jury, and the specific
reasons why the evidence is unreliable; see, for example, R v Stewart;
23
 nevertheless the courts still have a common law duty to ensure that no miscarriage of
justice occurs and High Court requires a court to give appropriate directions to the jury in
certain circumstances e.g., Longman direction – where a delay in prosecution and effect on
defence case of the delay (now qualified by section 165B);
 identification evidence is notoriously unreliable: sections 164 and 165 deal with
identification evidence of accused in criminal proceedings – preference is for an
identification parade (section 164). Other means of identification (e.g. photo identification)
are available but only if reasonable grounds for not holding a parade – see, R v Tahere;
 jury must be given specific directions where identification relates to accused in criminal
proceedings; section 165, R v Domican.
Desired Outcomes: That student recognises the burden of proof and the standard of evidence necessary to
discharge the burden. Also facts may be capable of being proved without necessarily adducing direct
evidence in respect of the specific fact. Lastly that certain kinds of evidence are unreliable and that the
Evidence Act seeks to provide some protection to the parties (particularly accused in criminal matters) where
such evidence is adduced.