Lecture 4
Miiko Kumar
Re-examination
• Defined in dictionary
Section 39
(a) A witness may be questioned about
matters arising out of cross-examination
(b) And other questions may not be put to
the witness unless the Court gives leave
• Note s 192
Reopening cases
• Criminal test – R v Chin
• Civil test – Urban Transport v Nweiser
Documentary evidence
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•
•
•
“Document” (Dictionary)
“Document in question” (s 47)
Tender the document under s 48 (1) or …
Unavailable documents – 48(4)
• Clause 5 of Part 2 of the Dictionary
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•
•
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Voluminous documents – s 50
Original document rule – s 51
NAB v Ruso
ACCC v Air New Zealand Limited (No 10 [2012]
FCA 1355
Adducing Real Evidence
Physical Things
Demonstration, experiment or
inspection
Section 52 - Adducing of other evidence
not affected
This Act (other than this Part) does not affect
the operation of any Australian law or rule of
practice so far as it permits evidence to be
adduced in a way other than by witnesses
giving evidence or documents being tendered
in evidence.
How are physical objects adduced as
evidence?
– Murder weapon
– Drugs the subject of the drug trial
– Photographs of the crime scene
– Map of the crime scene
– Scales in a drug trial
– Contract in a commercial dispute
– Chair that collapsed in an accident (in negligence
case)
Section 53
(1) A judge may, on application, order that a
demonstration, experiment or inspection be
held.
(2) A judge is not to make an order unless he or
she is satisfied that:
(a) the parties will be given a reasonable
opportunity to be present, and
(b) the judge and, if there is a jury, the jury
will be present.
Section 53
(3) Without limiting the matters that the judge may take into account in
deciding whether to make an order, the judge is to take into account the
following:
(a) whether the parties will be present,
(b) whether the demonstration, experiment or inspection will, in the
court’s opinion, assist the court in resolving issues of fact or
understanding the evidence,
(c) the danger that the demonstration, experiment or inspection might be
unfairly prejudicial, might be misleading or confusing or might cause or
result in undue waste of time,
(d) in the case of a demonstration-the extent to which the demonstration
will properly reproduce the conduct or event to be demonstrated,
(e) in the case of an inspection-the extent to which the place or thing to
be inspected has materially altered.
Section 54 - Views to be evidence
The court (including, if there is a jury, the jury)
may draw any reasonable inference from what
it sees, hears or otherwise notices during a
demonstration, experiment or inspection.
Application of ss 53 and 54
• Trial of Ivan Milat
- Could a view of the forest occur without
Milat attending?
R v Bilal Skaf,
R v Mohammed Skaf
• What was the successful ground of appeal in
this case?
• Can courts receive evidence from former
jurors as to their deliberations? [210] [214]
• Did the CCA find that the conduct of the 2
jurors was part of the deliberations?
• What was the “characterisation of the proven
incident”? – [241]
• Jurors engaged in a view and conducted
experiments – but not evidence in the trial.
• Parties and judge could not deal with this
material.
• Possibility that lighting conditions different
• Procedural unfairness
• Misconduct = miscarriage of justice
Section 53
(4) The court (including, if there is a jury, the
jury) is not to conduct an experiment in the
course of its deliberations.
(Note s 53 does not apply to the inspection of
an exhibit – 53(5))
R v Kozul
• Common law case
• Now covered by s 53(4)
• Mere examination and testing of evidence,
not supplying new evidence
What about an experiment,
demonstration or inspection that is
conducted in a courtroom?
• Evidence of the accused putting on the
balaclava and sunglasses
• Evidence of saying “Give me the serious cash”
• Evidence of the accused walking in the
overalls
Example
• A footballer is charged with murdering his wife at the
former family home. The prosecution allege that the
footballer wore a leather glove to commit the
murder.
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–
–
Can the glove be adduced as evidence?
Can the Crown conduct experiments on the glove?
At the trial, will a view of the home be allowed?
Can the defence adduce evidence that the glove does not
fit the accused’s hand?
3.8 Adducing Documents
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“document” - dictionary
“document in question” – s47
Section 48
Note ss50, 51
Adducing transcript
• Butera v DPP (1987) 164 CLR 180; [1987] HCA
58
• Foreign Media v Konstantinidis [2003] NSWCA
161
Authentication
• NAB v Rusu (1999) 47 NSWLR 309
• Adducing evidence
– Chapter 2
• Admissibility of evidence
– Chapter 3
Is the evidence relevent? (See Part 3.1)
Yes
Does the hearsay rule apply? (See Part 3.2.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
No
Yes
No
Does the opinion rule apply? (See Part 3.3.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
Yes
No
Does the evidence contravene the rule about
evidence of judgments and convictions? (See
Part 3.5)
Yes
No
Does the tendency rule or the coincidence rule
apply? (See Part 3.6. See also Part 3.8 on
character evidence.)
Y
e
s
No
Does the credibility rule apply? (See Part 3.7.
See also Part 3.8 on character evidence.)
Yes
No
Does the evidence contravene the rules about
identification evidence? (See Part 3.9.)
Yes
No
Does a privilege apply? (See Part 3.10.)
No
Should a discretion to exclude the evidence be
exercised? (See Part 3.11.)
No
THE EVIDENCE IS ADMISSIBLE
THE
EVIDENCE IS
NOT
ADMISSIBLE
Yes
Yes