Evidence Law
Topic 1
Overview
1. General aspects on evidence law
● EA ss 11-29
● McKell v R 2019
2.
Background to the EA 1995 NSW
3.
Relationship btw the Evidence Acts, the common law and other
statutes
● EA ss 8, 9
4.
Taking objections
5.
Dispensing with the rules of evidence
● EA s 190
6.
The voir dire
● EA s 189
7.
Advanced rulings
● EA s 189A
8.
Leave and conditions placed on leave
● EA s 192
Topic 2
Proof
2.1 Burden of proof
● Apollo Shower Screens (1985)
2.2 Standard of proof
● EA ss 140-142
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Qantas Airways v Gama (2008)
Bibby Financial Services v Sharma (2014)
Henderson v R (2014)
Green v R (1971)
Shepherd v R (1990)
R v Dookheea (2017)
Jury Directions Act 2015 (Vic) Pt 7
2.3 Prima facie case
● May v O’Sullivan (1955)
● Doney v R (1990)
● R v PL (2012)
Topic 3 Competence and compellability
Testimonial evidence
3.1
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3.2
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Calling a witness
EA ss 11, 26
Clark Equipment Credit of Australia v Como (1988)
Sharp v Rangott (2008)
R v Kneebone (1999)
Velevski v R (2002)
Nguyen v R (2020)
Competence & compellability
EA ss 12-20
SH v R (2012)
R v GW (2016)
Aust Institute of judicial administration, Benchbook for children
giving evidence
● Kirk v IRC NSW (2010)
● R v Khan
● Criminal Procedure Act 1986 NSW s 279
3.3 Sworn and unsworn evidence
● EA ss 21-25
3.4
Examination of witnesses
a)
Questioning of witnesses and examination in chief
EA ss 26-29, 37
GPI Leisure v Herdman (1990)
R v esposito (1998)
Ryland v QBE Insurance (2013)
Tootle v R (2017)
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b)
Reviving memory
● EA ss 32-35
● Dodds v R (2009)
● R v Rogerson; R v McNamara (No.24) (2016)
c)
calling for a document
● EA s 35
d)
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unfavourable witnesses
EA s 38
R v Le (2002)
DPP v Garett (a Pseudonym) (2016)
Odisho v R (2018)
3.5
Cross examination of witnesses
a)
Forms of questioning
EA ss 40-42, 38
Libke v R (2007)
Anile v R (2018)
R v Rogerson; R v McNamara
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b)
Cross examination on documents
● EA ss 42-45
● R v S (2003)
c)
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the rule in Browne v Dunn
EA s 46
Browne v Dunn (1894)
Precision Plastics v Demir (1975)
Payless Supabarn v O’Gara (1990)
R v Birks (1990)
MWJ v R (2005)
Khamis V R (2010)
R v SWC (2007)
Ward ( a Pseudonym) v R (2017)
Kadir v R; Grech v R (2020)
3.6 Re examination
● Ea s 39
● Drabsch v Switzerland (1999)
3.7 Reopening a case
● R v Chin (1985)
● Morris v R (2020)
● Urban Transport Authority NSW v Nweiser (1992)
3.8
Vulnerable witnesses
Topic 4
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Documents
EA ss 47-51, 58, 170, 171
Butera v DPP (1987)
Foreign Media v Konstantinidis (2003)
Capital Securities XV v Calleja (2018)
Wade v R (2014)
Re Idyllic Solutions (2012)
NAB v Rusu (1999)
ACCC v Air NZ (2012)
R v Gregg (2020)
Topic 5
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EA ss 52-54
R v Milat
R v Rogerson; R v Mcnamara
Evans v R (2007)
R v Skaf (2004)
Kozul v R (1981)
Topic 6
a)
Real Evidence
Relevance
Admissibility of evidence
● EA ss 55-58
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● Smith v R (2001)
whether the person in bank security
footage was the same person in the dock? Two P.C gave evidence
that he was.;
held evidence not relevant, jury could
make their own observations.
● Evans v R (2007)
D reqd to wear overalls, balaclava
and sunnies to replicate camera footage. Held can't identify
just by looking at clothes; walking and talking are more relevant.
Kirby -relevant bt unfairly prejudicial s 137
● Papakosmas (1999) P told friends she was sexually
assaulted; Held - hearsay if adduced to prove the truth of assault,
but other purpose for credibility of complainant.
b)
Inferences of relevance from documents
● NAB v Rusu (1999)
● ACCC v Air NZ (No.1) (2012)
● R v Gregg (2020)
Topic 7
use
Admissibility - Discretionary exclusions and limits on
7.1 Probative value : the extent to which evidence can rationally effect
the assessment of the probability of the existence of a fact in issue
Credibility is the truthfulness of a witness - whether the witness
truly believed they were telling the truth
Reliability - the ability of the witness to accurately discern and relay
the truth, including the ability to observe and remember facts.
Prejudice is whether the evidence might be given more weight
than it rationally warrants, or it might cause evidence to be assessed
emotionally rather than rationally.
● R v Shamouil (2006) videotaped i.d later retracted;
excluded under s 137 - low P.V; held court should assume
evidence is credible and reliable hw note general unreliability of i.d
evidence and credibility of D when assessing p.v
● Dupas - declined to follow Shamuil; XY - assume witness is telling
the truth when considering p.v. reduce if witness unreliable
● IMM v R (2016) indecent assault of granddaughter. Only
direct evidence came from the complainant. Adduced tendency
and complaint evidence.
held - s 97 and s 137 req that evidence is
taken at its highest re the assessment of relevance and p.v
Rule: to take evidence as highest when
assessing p.v, a)assume the witness is telling the truth and is
reliable and b) if unconvincing, then low p.v
● R v Dickman (2017) - backpacker/ biker altercation; photo board
identification evidence adduced. Held TJ admitted evidence; CoA
overturned - p.v so low as to be outweighed by the risk of unfair
prejudice s 137 (reliability, lapse of time, contaminated memory,
earlier identification was mistaken) also police disclosure that
respondent was offender.
● Bayley v R (2016)
identification had low p.v (single
photo from 12 yrs earlier)
● DPP v Hague (2018)
● R v Sood (2007) competing inferences - Doctor whose
receipt books found in bin; held - evidence taken at highest when
assessing p.v, evidence clearly relevant, credibility, reliability and
weight suggestive of a consciousness of guilt and which may be a
factor in determining whether unfair prejudice exists.
● R v DSJ
● R v Dennis Bauer (a Pseudonym) (2018)
7.2
Unfair prejudice
● EA ss 135-137
● Ordukaya v Hicks (2000)
sued for negligence over paving
step; D unable to give evidence and stat dec adduced under s 64;
held Inability to cross examine is not a basis for excluding
evidence but it goes to the weight of the evidence; may reduce p.v
depending on the circumstances of the case.
● La Trobe Capital v Hay property (2011) - admissibility of the
evidence of a senior manager re loan sought to be excluded under
s 135; held
must be compelling reasons for the
exclusion of evidence under s 135
● Ainsworth v Burden (2005) D sued for defamation over
letter claiming P not a fit and proper person to hold a gambling
licence; held evidence of P excluded under s 135. Evidence is not
unfairly prejudicial because it is damaging to their case, but may
be if there is a real risk that the evidence will be used by the jury in
an unfair way.
● Dennis Bauer
7.3 Prosecution evidence in criminal proceedings
● R v Sood (2007) there must be a real risk that evidence will
be misused by the jury in a way that the risk will exist,
notwithstanding the proper directions which it could be assumed
the court will give
● R v Dann (2000) - anal dilation; was expert evidence re possible
causes inadmissible under s 137? Held - not to be unfairly
prejudicial - the graphic nature of the subject matter was not of
itself prejudicial.
● Aytugrul v R (2012)
DNA testing in murder trial, expert
evidence that profile excluded 99.9% of ppl. Was the evidence
unfairly prejudicial? Held: the prejudice had been cured through an
explanation of the evidence and what it meant.
7.4 General power to limit use
● EA s 136
● Jango v NT (No.4) (2004)
-additional material submitted to
est the basis for expert evidence. Limited by s 136 as unfairly
prejudicial.
7.5 Illegally and improperly obtained evidence
● EA ss 138, 139
● Robinson v Woolworths (2005)
used a minor to buy
ciggies to test legal compliance. Was the evidence improperly
obtained under s 138? Held: whilst it was illegal to sell to minors, it
wasn't illegal for them to buy them. No illegality.
● DPP v Marijancevic (2011) M charged with drug
manufacture and trafficking. Warrants not sworn, rejected under s
138. Held: impropriety must be balanced against the p.v of the
evidence. Upheld on appeal. Evidence excluded.
● Kadir v R; Grech v R (2020)
Topic 8
Hearsay
8.1 the general hearsay rule
● Ea SS 59 60 136
● Subramaniam (1956) held: the purpose of the evidence
was to prove his duress (mental state) which was relevant.
Evidence is hearsay and inadmissible when the object is to est the
truth of the statement
● Kamleh (2005) shooting, nightclub alibi, phone convo, tv
set. Evidence given tv volume was turned up. Held adduced
not to prove tv was turned up (truth of statement) but to prove D
was in the room
● Lee v R (1998) C retracted statement of what Lee said (re
armed assault) Evidence adduced for purpose of attacking C’s
credibility under s 60
● Quick v Stoland (1998)
financial report adduced
indicating insolvency; relevant to prove the factual basis of the
report under s 60
● Jango v NT No.4 (2004)
8.2
first hand hearsay exceptions
a)
availability and requirements
EA 61,62,67
Caterpillar v John Deere No.2 (2000)
Were efforts taken
to get expert (maker) to court sufficient? Held - steps taken were
insufficient, expert was available, document excluded
Franklin (2014) barrister 4 sexual assaults, sought to
tender transcripts in order to strike off; held - \
Suteski (2002) -
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b)
Civil cases
● EA ss 63, 64, 67, 68
c)
Criminal cases
● EA ss 65, 66
● Section 65 each case must be considered having regard to
its own circumstances
● Williams v R (2000)
robbery, gun buried in backyard of S;
S died, transcript tendered under s 65d2; interview 5 days later
held five days too long, inadmissible; likely to be a
fabrication, inadmissible under s 65c2
● Harris v R (2005)
H attacked W. W gave a statement
the next day then died. H convicted of manslaughter; held day after assault so ok, viewed as unlikely to be fabrication, so
admissible
● Munro v R (2014)
robbery, DNA on ciggie at bus stop,
Gs statement re cleaning schedule then died. Held statement reliable, cleaning system structured and repetitive;
sufficiently reliable under s 65c2
● Sio v R (2016) rep by F that S gave him knife used to stab
G; admissible under s 65d2; held evidence did not satisfy s
65d2, not actually against his interest; an assessment of the
objective circumstances must be made
Section 66
● Graham v R (1998)
S.A of kids, complainant told friend
years later, friend gave evidence. wAs 6 years considered fresh in
the memory and admissible? Held must be temporal
connection, too long in this instance; insertion of 2A
● R v XY (2010) S.A, complainant gave recorded interview
4-8 years after; held not fresh, (widely interpreted),
temporality not determinative; Note: Odgers criticism - too much
evidence placed on the vividness of events
● LMD v R (2013) child S.A, complaint made years later;
considered fresh in the memory - trouble having sex w bf. Odgers made the nature of the events the critical factor
● ISJ v R (2012) not fresh in the memory when reps made
● Clay v R (2014) two complaints were made 20 years later,
not contemplation of legislature to be admissible
● Pate v R (2015) uncle abused niece; as per Clay, need
actual evidence of freshness, the longer the time, the more
important the circumstances that point to freshness of the memory.
8.3 Other exceptions
a)
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b)
Business record and other remote exceptions
EA ss 69-75
Lancaster v R (2014) child s.a, DHS file on each child; files
tendered and expert opinion offered; held
accepted
under s 69(2) considered as business records - kept in the course
of business of ppl referred to dept.
Thomas v state of NSW (2008)
T sued for malicious
prosecution; TJ admitted transcript of RC on basis of business
record. Held evidence given in tribunal and obtained in
connection w a proceeding
Hanson Bev Co. v Bickfords (2008)
Lithgow CC v Jackson (2011)
J found in drain,
Ambulance record suggested a fall from retaining wall, J sued LCC
in negligence; held
s 69 did not apply to the ambos report
as officers did not have personal knowledge of the asserted fact
(whether he fell off the wall)
ACCC v Air NZ (2012) whether minutes were inadmissible
as hearsay; held - an opinion as to the existence of a fact falls
within the scope of an ‘asserted fact’ ; can include lay opinions that
fall under s 69
EA ss 70-75
Vulnerable witnesses
● Criminal procedures act 1986 NSW
c)
Res Gestae :In essence, the principle in Vocisano states that for
evidence to be admitted under Res Gestae, it must not only satisfy the
court that the evidence has not been concocted by the maker, it
must also be contemporaneous with the transaction and must be a
spontaneous reaction
● O’Leary v R (1946)
● Rattan v R (1971)
● R v Mostyn (2004)
Topic 9
9.0
Admissions
EA 81-90, 138-139
9.1 Admissions influenced by violence, oppression
● EA s 84
● R v Zhang (2000)
Z admission to murder in ERISP.
Police offered 2 choices: cooperate or be charged. Was also
threatened by the detective; held: conduct was oppressive under s
84 and evidence excluded.
9.2 Unreliable admissions
● EA s 85
● Kelly v R (2004) K made admission 30 mins after ERISP
completed, and not in response to any further questioning.
● R v Moffatt (2000)
murder charge, appeared on basis of
the admission of oral ERISP; effect of intoxication, held: evidence
was reliable even tho M was drunk and this affected reliability, but
he demonstrated a high tolerance evidence during his interview
● R v Zhang claimed his admission was false; assess the
veracity of the admission; offer of assistance could have affected
the truth of the confession; promises made may also affect the
reliability of the admission
● R v Mclaughlin (2008) M charged with house fire. Covered
in soot and intoxicated and gave admission. Examined by doctor mental issues, suicide atempts and drug dependcy; held: issues
with reliability, vulnersbilitys are relevant in assessing the truth of
an admission. Admission excluded.
● R v Singh
9.3 Improperly obtained admissions
● EA 138-139
● R v Helmhout (2001) On appeal argued confession made
in custody was inadmissible. Indigenous and reqd rep present from
ALS. Failure to inform ALS and admission obtained. Held: req that
there be a deliberate oversight. Was inadvertent. Gravity of offence
is also a consideration.
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Risk of fabrication
Criminal procedure Act 1986 NSW s 281
EA ss 86, 88
R v Naa (2009)
9.5 Unfairness
● EA s 90 - the court has discretion not to admit evidence
● Foster v R (1993)
setting fire to school, F argued
admission extracted by threats; held: on appeal numerous factors
weighed against admission on basis that was unfair to the
appellant and contrary to public policy. S 138
● R v Swaffield; Pavic v R (1998)
Swaffield admission to undercover cop re a fire at rowing
club; failure of coppa to caution was unfair?
Pavic
C wired and P made admissions of involvement
in murder. Argued exclusion on the basis of unfairness.
Held: unfairness involves an evaluation of the circumstances. Four
reasons for excluding - not voluntary, is unfair to admit, against
public policy, low p.v. Swaffield - excluded; Pavic- included
● Em v R (2007) police covertly taped appellant who made
admissions; did not caution him. Em had mistaken belief re
admissibility of admissions. Held: admissible, no breach of s 90.
Freedom to speak or not was not impugned.
● R v DRF (2015) child s.a, complainant fitted with listening
device and D made admissions
9.6 Silence in response to police questioning
● EA ss 89, 89A
● Petty & Maiden v R (1991) charged w murder of W. M PIS
given in cross. Did not choose the right to silence. Jury direction
given re failure to put forward a defence. Held M had not remained
silent re killing. Entitled to bring PIS to the attention of the jury.
● R v Rose (2002)
● Jury Directions Act 2013 NSW s 25
Topic 10
Credibility
● EA s 101A- 108C
● Palmer v R (1998)
S.a of 14 yo girl. Can an accused be
cross examined about a victim's motive to lie? Held: The
complainant's evidence does not gain any greater credibility just bc
an accused cannot assist whether the complainant had a motive to
lie. Jury instruction incorrect. Quashed.
● Adam v R (2001) convicted of murder. Appeal on basis of
ERISP given by witness, who refused to repeat in court; held:
ERISP relevant in terms of credibility and hearsay. Witness made
PIS. no finding of fresh in memory s 66; s 101A
10.1 Attacking credibility under cross
● EA 38, 43-44, 101A, 102-104, 106, 108A 192, 192A
● DPP v Kocoglu (2012)
● SRA NSW v Brown (2006) - train accident. P claimed damages for
various injuries. Cross examination on credibility after some claims
were withdrawn. TJ stopped the line of questioning. Appealed on
that basis. Held: was judges discretion, may have erred if
questioning led to substantive p.v but not viewed as a substantial
wrong.
10.2 Rebutting denials
● EA ss 106, 192
● Col v R (2013) d.v incident arising from attending bbq.
Doused bed in metho and set alight. Did TJ err in admitting the
victim's statement? Held:
whilst inadmissible hearsay, was
credibility evidence under s 101A, and fell within exception s 103
and adduced with leave s 38. Contents of PIS admissible by s 106,
admisible for non hearsay purpose s 60, used as evidence of facts
stated.
10.3 Supporting credibility (of party’s own witness)
● EA ss 102, 108, 108C
● R v Ngo (2001) murder of Newman; principles: a) s 108
only applies in reexamination and not examination in chief; b)
witnesses not allowed to refer to the reason for their PIS c) until
after the statement has been adduced for credibility purposes and
wat rebuttal.
● R v Whitmore (1999)
● Nikolaidis v R (2008)
10.4 Credibility evidence in the absence of the maker of a
representation
● EA ss 102, 108A 108B
10.5 Expert evidence
● EA ss 102, 108C
● Dupas v R (2012)
D guilty of murder, identified from
photo board; expert report gave evidence re weakness of id
evidence in general. Held: the expert did not have basis to give
credibility evidence re individuals because it was general research.
Jurors capable of assessing to what extent the general
propositions would affect the assessment of credibility of each
witness.
● MA v R (2013) - convicted of sexual abuse of daughter.
Psychiatrist gave expert evidence. The Complainant's mother did
not accept the complaint. was mothers response related and
relevant to the evidence of potential responses by a victim of
sexual abuse and so fell with in s 108C2. Held:
mothers
response was related to how the victim deals with it.
● De Silva v R (2013) - convicted of s.a against minor. Sri lankan;
evidence called from child psych. Held the expert evidence strayed
into areas beyond his area of qualification - re opinion of sri lankan
culture and the catholic faith. Appeal granted.
Topic 11
Opinion evidence
● EA ss 76-78
● R v Whyte (2006)
mother gave evidence that
complainant said ‘ a man tried to rape me’.
Held: either s 78 applied as a lay opinion, or according to Odgers
s 77 would apply as the prior consistent statement could be used
to enhance credibility, meaning the opinion rule does not apply, but
the evidence can be used to prove the opinion.
11.1 Lay opinion
● EA s 76-78
● Lithgow CC v Jackson (2011)
The record of ambulance
officers was admitted pursuant to s 78 as an opinion that Jacson
fell from the retaining wall.
Held: the record was inadmissible. The ambos did not witness the
event abt which the opinion was expressed. S 78a
11.2 Expert opinion - opinion subst based on specialised knowledge
Specialised knowledge has to be obtained from their training,
study or experience. The opinion is wholly or substantially based on that
knowledge.
● EA ss 7, 79, 137
● HG v R (1999) charged with s.a of child, sought to enter
evidence from psychologist that abuse done earlier and elsewhere.
Held: an experts opinion must be related to their expertise. Here
the opinion would not have been based on the expert's specialised
knowledge as a psychologist, but based on speculation, inference
and personal views as to the child's credibility. Not wholly or
substantially based.
● Honeysett v R (2014) convicted of armed robbery. Expert
anatomists gave evidence of similar anatomical characteristics btw
appellant and robber in tv footage.
● Held on appeal, the expert's observations were basically the same
as a lay observer save for his knowledge of anatomy. Held: his
opinion was not based on his knowledge of anatomy, but simply of
his observations of the tape.
● Dasreef v Hawchar (2011) diagnosis of silicosis. H and
tribunal relied on doctors opinion evidence (numerical evidence) to
conclude H had received exposure above minimum safe levels.
Held: doc did not have the requisite specialised knowledge to
measure or est the amount of respirable silica a worker would be
exposed to. there was no basis to conclude the doctor's opinion
was based wholly or substantially n specialised knowledge arising
out of training study or experience,
● Kyluk (2013)
K guilty of picking endangered plants;
expert evidence re soil analysis; held: even if an opinion based on
assumed but unproven facts is admissible, it may be given little or
no weight if the assumption is not made good by the evidence.
There was no evidence of what went on in the lab, so its veracity
could not be tested. The defendant was unfairly disadvantaged. probative value was substantially outweighed by unfair prejudice to
D s 135
● Langford v tas (2015) charged with setting fire to a taxi.
Based on evidence of the opinion of fire investigator that fire
started on external surface, rather than electrical fault (no
expertise in car electronics);
Held: the partial reliance by an expert on information, factual or ow,
provided by others, will not impact on the admissibility of the
opinion, provided that the opinion is based wholly or substantially
upon the experts specialised knowledge
11.3 reliability of expert opinion s 79 and s 137
● Tuite v R (2015) D numerous charges of violent conduct.
DNA evidence presented as a likelihood ratio. methodology was
largely untested - had not been generally accepted by the forensic
science community.
Held: as long as you can show your method is based on your
training or experience, it doesn't matter if your method is novel, or
the inferences drawn from the facts have not been tested or
accepted by others. Open to TJ to accept under s 79(1)
11.4 Expert code of conduct
● Wood v R (2012) threw GF off the Gap. sue Crown for
malicious prosecution.
● Uniform Civil procedure rules 2005
11.5 Common knowledge and ultimate issue rule abolished
● EA s 80
● Allstate v ANZ No.6 (1996)
Topic 12
Character
● EA ss 104, 108B 109-112, 192, 192A
● R v Zurita (2002)
Z tried to adduce character evidence.
Had no prior offences for sexual offences but ones for theft and
assault. Judge refused - all or nothing
Held: defendant can't just raise part of his character; applicant
deprived of placing evidence before the jury, that he had no sexual
offences
● Braysich v R (2011)
stockbroker convicted of false trading
in securities.
● Melbourne v R (1999) murder of neighbour. Claim to have
health and drug issues. Adduced evidence of good character. TJ
did not make direction as to effect of character evidence or
assessment of credibility.(appeal point)
Held - dismissed. None of the evidence had any direct probative
bearing on truthfulness or credibility.
● DPP v Newman (a pseudonym) (2015) ● Stanoevski v R (2001) solicitor convicted of defrauding.
Judge gave leave for prosecution to cross on report under s 112. S
conceded she had witnessed a signature on an affidavit when
signatory not there
Held: court must have regard to s 192(2) in exercising leave
pursuant to s 112 to cross examine an accused person on the
issue of character. Unfairness to D arose from extensive collateral
enquiry.
Topic 13
Tendency and coincidence evidence
Tendency
● Evidence they have done it on a number of occasions b4 and
therefore they have a habit and makes it more likely they have
done it.
● Attached to the conduct
● Have been convicted
Coincidence
● These things could not be a coincidence
● Two or more events have happened that are alike and their
occurance in that way is so peculiar to make it unlikely that is a
coincidence they both happened.
● Therefore the inference is that D caused one of them or is linked to
them in some way.
Differences
● Coincidence - jury rules on the way improbability of events
occurring other than in the way suggested to infer the FII
● Tendency - the jury rules on the fact that a person has a tendency
to act in a certain way to infer the FII.
● EA ss 94-101
● Pfennig v R (1994)
CL test. Charged with murder of a
boy. Prev sexual assault. Should evidence of assault be
admissible?
Held: The evidence must be so probative that it bears no
reasonable explanation other than inculpation of the accused in the
offence charged.
● Hoch v R (1988) when the accused does not dispute events
said to constitute similar facts, and there is evidence that connects
the accused with one or more of the events, the evidence will be
admissible if it has sufficient p.v. a possibility of joint concoction will
render similar fact evidence inadmissible. The evidence in Hoch
was the complainants had a close relationship and the opportunity
to concoct their evidence.
13.1 Significant probative value (a must under s 97)
In criminal proceedings, the prejudice of admitting tendency
evidence must be outweighed by probative value.
the extent to which the evidence supports the tendency
the extent to which the tendency makes more likely the facts
making up the charged offence.
● IMM v R (2016) Both s 97 and s 137 require that evidence
is taken at its highest in the effect it could achieve on the
assessment of the probability of the existence of the FII.
The court accepted the tendency evidence was relevant as it was
capable of showing that the appellant had a sexual interest in the
complainant.
● Hughes v R (2017)
alleged tendency - having a sexual
interest in female children under 16, and using social and familial
relationships to facilitate his interest. Could the crown use
uncharged matters as tendency evidence?
Held: tendency evidence met s 97.
● Dennis Bauer (2018) 18 counts of indecency and sexual
penetration. TJ allowed tendency evidence of RC and sister.
Held: reaffirms hughes.
● Mcphillamy v R (2018) Hughes as authority. It is the
tendency to act on the sexual interest that gives tendency
evidence in sexual cases, its probative value.
13.2 Competing influences and joint concoction
● DSJ v R; NS v R (2012)
insider trading. DSJ was the
insider and NS was the buyer. Crown wanted to admit evidence of
each offence as coincidence evidence in relation to other offences
Principles: coincidence evidence is not to be admitted if it does not
have significant p.v.
● Denis Bauer
13.3 Civil cases
● Jacara (2000)
evidence of system - misleading and deceptive
practice re tenancy in a shopping mall.
13.4 Distinguishing non property uses
● R v Falzon (2018)
● LJW v R (2010)
Topic 14
Identification evidence
● EA ss 113-116
a)
Visual identification evidence
● Ea s 114
● R v Tahere (1999) impractical to hold an identidfication parade
as unable to gather enough ppl of similar appearance.
b)
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Photographic and picture identification evidence
EA s 115
Displacement effect: This effect can occur when a person is
shown a photograph of a suspect before identifying them in a
parade. The witness's memory of the person observed committing
the crime can be effectively replaced by a memory of that
photograph.
Alexander v R (1981) - P charged with trespassing with intent t
steal. Photographic identification. Was the evidence of the P.O
regarding the selected photo admissible?
Held:
Peterson (a pseudonym) v R (2014) V tracked the assailant
using FB. no photo board used. Possible displacement effect.
Probabtive.
MA v R (2011) any possible displacement effect did not
require exclusion, and could be dealt with via a direction.
PACE (a pseudonym) v R (2014)
Topic 15
Privileges
15.1 Client legal privileges
a)
availability and requirements
● EA ss 117-126
● Esso v FCT (2000)
● Southland Coal (2006)
b)
Loss of privilege
● Mann v Carnell (1999)
● Expense Reduction v Armstrong (2013)
● Dival v Mifsud (2005)
● DPP v Galloway (2014)
● Kang v Kwan (2001)
15.2 Professional relationship privilege
● EA ss 126A-F
● DG Dept CS v D (2006)
15.3 Privilege against self incrimination
● EA ss 128; 128A
● CFMEU v ABCC (2018)
15.4 Negotiations
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●
●
●
EA s 131
Field v Commissioner for railways NSW (1955)
SRA NSW v Smith (1998)
Rush & Tomkins v Greater london Council (1989)
15.5 Public interest immunity
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●
●
●
EA ss 129-130
Sankey v Whitlam (1978)
Derbas v R (2012)
NSW v transport ticketing corp (2011)
15.6 Miscellaneous
● EA ss 126G - 127
15.7 Applications to pre hearing disclosure
● EA s 131A
● NSW v transport ticketing corp (2011)
Topic 16
Proof Pt 2
16.1 Judicial notice
●
●
●
●
EA ss 143-145
Woods v Multi sport holdings (2002)
Aytugrul v R (2012)
Maluka v Maluka (2011)
16.2 Judgments and convictions
● EA ss 91-93
● Gonzales v Claridades (2003)
16.3 Inferences from absence of evidence
● Jones v Dunkel (1959)
motor vehicle collision. D did
not give evidence. What inferences can be drawn from the failure
to give evidence?
Held: it may lead to an inference that the uncalled evidence may
not have assisted the partys case. The TJ ought have directed the
jury to this effect.
● EA s 20 - defendants failure to give evidence
● Weissensteiner v R (1993) convicited of couples murder
who owned a yacht. D gave inconsistant statements, gave no
evidence, called no evidence. The TJ told jury it could draw an
inference of guilt given the failure to give evidence abt facts within
his knowledge.
Held: the TJ was correct i telling the jury that Ds failure to give
evidence strengthened the prosecution case.
● Azzopardi v R (2001); Davis v R - both failed to give evidence.
Were the istructio by the TJ permissible? Held: both directors
contravened s 20. Davis convicted. A appeal allowed.
● Dyers v R (2002)
convicted of indecent assault. D did
not call T as witness. The TJ directed the jury that it could draw a
JvD inference gainst the accused. - if the jury expected the witnes
to be called by a party and there was no satisfactory explanation
of the failure to call the person, jurorsw were entitled to infer that
the evidence would not have assisted that party.
Held: a material misdirection by the TJ. it cannot be said that the
accused should ordinarily be expected to give evidence, it is for
the prosecution to prove BRD.
16.3 Warmings
a)
potentially unreliable evidence
● EA ss 164-165, 165A/B
● Jury directions act Vic 2015 ss 32-34
● R v flood (1999) D on appeal say that the judge makde a
mistake by not giving a warning that her evidence may be
unreliable as she suffered a brain injury as a result of an accidnet.
Low threshold test. Some reasonable basis must support the
contention that the evidence is unreliable
● R v Stewart (2001) - judge can give a warning, even if not
requested.
b)
Children's evidence
● EA s 165A
● JDA s 33
● CMG v R (2011) judidcal comments must fall within the
scope of judicial directions and not evidence (words of TJ seemed
to indicate expert opinion)
● R v GW (2016) -
c)
Delay and credibility
● Criminal procedure Act 1986 NSW
● JDA 2015 Vic
● Crofts v R (1996)
d)
delay and forensic disadvantage ; judicial warnings
● EA s 165B
● JDA 2015 Vic ss 38-40
● Longman v R (1989) convicted of two counts of sexual
assault 25 yrs earlier. Only evidence was oral evidence of the
complainant. The judge told the jury to consider the relative
credibility of the complainant and Longman. No warning was given
as to factors relevant to the complainant's evidence.
Held:
a warning should have been given to the jury re the
dangers of convicting on evidence that was so old as to prevent
the accused from properly testing it. The TJ is under a duty to give
a warning about the risk of miscarriage of justice rising from the
circumstances of the case.
● Robbins (a pseudonym) v R (2017)