Evidence – Laws 3310
Semester 2, 2007
Unit Outline
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© The University of Western Australia 2006
Evidence Study Guide Semester 2 2007
Important Notice to Students
 Please note this study guide is supplementary to the course
lectures and tutorials.
 Information provided in this study guide is subject to change
throughout the semester.
 Students should not rely on the contents of this study guide as a
substitute for lectures and/or tutorials.
Unit Outline
Introduction
Welcome to LAWS 3310 – Evidence. For many of us, courtroom scenes on television or
in the movies were our first introduction to the law in operation. Although it all looks
rather dramatic, we do need to be careful. Television and film producers are permitted
something that lawyers, generally, are not – artistic licence! Also, as you have probably
guessed, the US produced programs can be rather misleading as their advocates are
permitted to be far more flamboyant than those in Australia.
However, through your television and movie viewing (probably when you should have
been studying but we will not dwell on this); you will find you will already be familiar
with some of the terminology used in the courts. For example you will have heard of
Examination in Chief and Cross Examination. You will have heard references to Hearsay
and a prohibition on ‘leading’ the witness. Perhaps you have heard of the need for
corroboration in certain types of case. Also, when listening to or reading reports of highprofile cases in the media, you may have questioned why juries are (usually) not made
aware of the previous convictions of an accused or why certain witnesses may be excused
from testifying through a claim of privilege. Hopefully, over the next 13 weeks, all will
be revealed!
The subject will provide students with a basic understanding of the common law and the
main pieces of legislation dealing with the law of evidence. The emphasis will be on the
common law and the Evidence Act 1906 (WA). Other legislation will also be examined
where applicable. Although reference will be made at times to the Evidence Act 1995
(Cth) this legislation will not be examinable. The emphasis in the course will be on the
practical application of the law, however, an understanding of theories relevant particular
areas of the law of Evidence will be referred to at times.
In your other law subjects to date, you have generally looked at the elements of an
offence or a cause of action. For example, in Criminal Law, you would have considered
whether the elements of the relevant provision of the Criminal Code have been satisfied.
The elements may seem to be satisfied on the facts in your problem but in Evidence we
go one step further. In this subject we will be looking at, for example, what evidence the
Prosecution must present to establish that the accused person has committed the offence.
What is the standard of proof required? In a criminal matter it is, of course, beyond
reasonable doubt.
We will look at the types of Evidence, for example, real evidence, documentary evidence
and oral testimony. We also examine the rules of Evidence which dictate whether or not
the evidence sought to be presented to the court is admissible.
Now, just a word of warning. Evidence is tricky. It is a large subject. There is a lot of
information to take in. At times you will feel a little over-whelmed. It is one of those
subjects that can be compared to a large jigsaw puzzle. All through the semester we will
try to put the pieces together and it may not feel as though you are getting the full picture.
However, suddenly (hopefully) at the end of the semester everything should fall into
place. On the brighter side, Evidence is really very interesting, topical and, dare I say,
quite an exciting subject.
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Evidence Study Guide Semester 2 2007
Assessment
Component
Weight
Due date
Mid-term assignment
30%
Students will receive the assignment
(via internet and hard copies available
at the Law School Reception) on
Friday 17 August at 12.00pm. The
assignment should be submitted by
12.00pm on Friday 24 August.
Final exam
70%
As scheduled
Tutorial exercises/activities
In 2007, tutorial participation in Evidence is not assessable. However, regular attendance
is highly recommended.
Assignment
The assignment will be worth 30% of the marks in this subject. It will be in the form of a
problem question based on material from weeks 1-4 of the course. The assignment will be
distributed at the end of week 4. It will available on the internet and at the Law School
Reception from 12.00 pm on Friday 17 August at 12.00pm. The assignment should be
submitted by 12.00pm on Friday 24 August. The assignment will be 2000 words in length
(maximum). There will be no lectures or tutorials in week 5 so you can focus on your
assignment. The material on the assignment will NOT be re-examined on the end of
semester examination.
Final exam
Due to the broad nature of the subject and the number of issues canvassed the coordinator
believes this is the most appropriate way to ensure students cover the majority of issues in
the course. The examination will be scheduled in the November examination period. The
examination will consist of a choice of questions on material from weeks 6-13. The
questions will be primarily problems but some may contain a short essay or a short
answer question. The examination will be worth 70% of the total marks for the subject.
More information will be provided during the semester.
The Evidence team in second semester 2007 is made up of Eileen Webb, Christian Porter,
Penelope Giles, Anthony Papamatheos, Laura Timpano and Judith Seif. We hope you
enjoy the lectures and tutorials. If you have any questions throughout the semester, please
do not hesitate to contact us – we are here to assist.
Goals
Evidence is a large subject and it is impossible to cover everything in a 13 week course.
Therefore our goal is to provide an overview of evidence law pursuant to the common
law and Evidence Act 1906 (WA). The subject aims to provide an introduction to the
fundamental rules of Evidence and to assist students in understanding and applying these
rules when utilised in the course of a civil or criminal matter.
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Unit Outline
Broad learning outcomes
On completion of this unit, students will:

Appreciate the role played by the rules of evidence in litigation;

Identify the major case authorities relevant to each area of the law of evidence
studied, and discuss the relevance of those cases to the Evidence course;

Identify evidence needed to prove a client's case or disprove an opponent's case,
according to the rules of evidence;

Have acquired a good working knowledge of the most important rules of
evidence and an ability to apply those rules to diverse factual scenarios;

Understand the main sources, principles, techniques, terminology and concepts of
the law of evidence in Western Australia;

Developed skills in the analysis of evidence.
Contact details
Unit web site URL
Unit coordinator
Name:
e-mail:
Eileen Webb
ewebb@law.uwa.edu.au
phone:
6488 2947
fax :
6488 1045
Consultation hours :
TBA
Unit coordinator
Name:
Christian Porter
e-mail:
christian.porter@uwa.edu.au
phone:
6488 1754
fax :
6488 1045
Consultation hours :
Monday and Thursday 9.30am to 10.00am
Prerequisites
This unit assumes that students have already developed certain basic skills. It is expected
that students have an adequate command of:
1.
English and related communication skills – students are expected to have very high
English language skills and to be able to understand and follow the principles of
accepted expression and style;
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Evidence Study Guide Semester 2 2007
Library research skills – research is an important aspect of studying law and
students will be expected to utilise the facilities of the Law Library on a regular
basis.
2.
If you are not well prepared in any of the above areas you should make every effort to
remedy the situation through undertaking additional reading and/or practice. Do not
hesitate to ask for advice from your tutor.
The University’s Student Learning, Research and Language Skills Service offers
assistance in a variety of areas, including writing skills, study skills, examination
preparation skills and stress management. The service is located on the second floor of
the Guild Village, south entrance/ exit and can be contacted by telephoning 6488 2423 or
6488 2258.
Unit-specific prerequisites

200-130 The Legal Process

It is highly recommended that students should have completed Criminal Law 1 &
2 before undertaking the Evidence course.
Lectures

Monday
1.00 -1.45 Wilsmore lecture theatre, Chemistry Building.

Monday
2.00 -2.45 Wilsmore lecture theatre, Chemistry Building.

Wednesday
3.00 -3.45 Wilsmore Lecture Theatre, Chemistry Building
Attendance at lectures is not compulsory but is highly recommended. All lectures will be
recorded and will be available on the internet.
Tutorials
Tutorials will be held once per fortnight. Students will be allocated according to their
preferences indicated on the online class registration system.
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Unit Outline
Unit schedule
Week
Topic
Lecturer
Tutorials
Administrative matters
1
23 July
Introduction to the law of
Evidence
Christian Porter
Relevance and
admissibility
2
30 July
3
6 Aug
4
13 Aug
The Course of the Trial
Competence and
compellability
Christian Porter
Christian Porter
Tutorial Groups
1-8
The accused as a witness
Question 1
Identification evidence
Tutorial Groups
9-16
Christian Porter
Question 1
5
20 Aug
6
27 Aug
Lecture free week due
to assignment
preparation
Opinion evidence
Christian Porter
Tutorial Groups
1-8
Question 2
7
3 Sept
Confessions and
admissions
Christian Porter
Tutorial groups
9-16
Question 2
Mid-Semester break
8
17 Sept
Tutorial Groups
1-8
Disposition and character
Eileen Webb
Similar fact evidence
Question 3
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Evidence Study Guide Semester 2 2007
9
24 Sept
Hearsay
Eileen Webb
Tutorial Groups
9-16
Question 3
10
1 Oct
11
8 Oct
12
15 Oct
Exceptions to Hearsay
Eileen Webb
Res Gestae
Tutorial Groups
1-8
Question 4
Privilege
Eileen Webb
Corroboration
Real Evidence
Documentary Evidence
Tutorial Groups
9-16
Question 4
Eileen Webb
Tutorial Groups
1-8
Question 5
13
Revision
Eileen Webb
22 Oct
Tutorial Groups
9-16
Question 5
Textbook(s)
Recommended/required text(s)
 Evidence Act 1906.(WA)
 Arenson and Bagaric, Rules of Evidence in Australia, 2005, Butterworths, Australia
(“Arenson and Bagaric”) OR
 P.K. Waight and C.R. Williams, Evidence - Commentary and Materials (6th
Edition), c.2002, LBC Information Services, Australia (“Waight and Williams”)
Additional/Suggested/Alternate text(s)
S.B McNicol, D.Mortimer, Butterworths Tutorial Series – Evidence (3ndEdition) c.2005,
Butterworths Ltd, Australia
The Hon. Justice Heydon, Cross on Evidence (7th Australian Edition), c2004, LexisNexus
Ltd., Australia
A Ligertwood, Australian Evidence (4th Edition), 2004 Lexis Nexis Butterworths
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Unit Outline
Unit web site
TBA
Policies
The information in this unit outline has been prepared to answer the questions most
commonly asked by students enrolled in this unit. In addition to matters relating
specifically to this unit (eg class attendance), it summarises some of the information
contained in the Faculty of Law Handbook (and the abbreviated First Year Handbook)
and other Faculty of Law Policies.
This unit does not provide a comprehensive statement of Faculty of Law policy.
You should refer to those documents for any further information you require.
The Law School Policies you are most likely to want to refer to are:

Faculty of Law Examination Rules and Guidelines

Faculty of Law Credit Policy

Faculty of Law Cross-Institutional Enrolment Policy
Copies are available on the Law School website – Student Information Link - or by
emailing lawgen@law.uwa.edu.au.
The Hitch Hiker’s Guide to the Law School provides the Law School's policies in relation
to a number of matters
You will find an electronic copy of this guide and other useful administrative information
in the ‘Handbook’ section of the Law School home page: http://www.law.uwa.edu.au/.
Copies are also available in the Law Library for reference.
Class attendance
Attendance at and participation in all classes is always helpful to your learning. The role
of regular attendance and participation in calculating your assessment will depend on
your teacher. Your teacher will provide you with a copy of his or her policy on the matter
in the first class.
It is important you select the appropriate class time because once the lecture, tutorial and
small group allocation lists are finalised you will be permitted to change classes only in
exceptional circumstances. A student exit note will need to be completed. These are
available from Law School Reception. This process requires approval from the class
teacher of the class you are leaving and the class you wish to attend. The signed form will
need to be returned to Law School Reception. It is necessary to use this system because
for classes to be effective maximum numbers need to be set and switching classes after
allocation is very disruptive.
Submission of assignments
The following guidelines on submission of assignments have been extracted from the
‘Hitch Hiker’s Guide to the Law School’.
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Evidence Study Guide Semester 2 2007
Assignments should be submitted with a cover sheet which is available from the General
Office and contains the following information:
(a) Unit title.
(b) Student number - not student name.
(c) Lecturer's name.
(d) Lecture time and day.
(e) A declaration of the number of words.
Assignments should be typed where possible. Students are also required to retain a copy
of their assignment to safeguard against the possibility of loss or theft.
Assignment extensions
If a student is unable, for valid reasons, to comply with the deadlines for submission of an
assignment he or she may seek an extension of time from the unit co-ordinator prior to
the submission day. Students should contact the unit co-ordinator to discuss their
difficulties as soon as possible.
Applications for an extension of time should be in writing and should be supported by
medical certificates where appropriate.
Work conflicts and other educational
commitments will not ordinarily be considered sufficient to warrant an extension.
Late submission of assignments
Assignments must be handed in on time. The time for handing in assignments will be 12
noon on the due day at the Law School General Office unless otherwise advised. If a
student submits an assignment after the normal or extended date without approval, he or
she will be penalised by a loss of marks. The reason for this is simply to ensure fairness to
other students who hand in their assignments on time.
The penalty that will be incurred for all first year units is a proportional deduction of 5%
of the marks per day.
Exceeding word limits on assignments
Assignments must be within the stated word limit. The main reason for this is to
encourage students to write in a clear, concise and efficient manner. If a student submits
an assignment that exceeds the word limit, he or she may be penalised by a loss of marks.
Once again, as with late submission of assignments, the reason for imposing a penalty for
excessive words is to ensure fairness to other students who have complied with the word
limit.
The number of words in an assignment includes all the words in the text including
definite and indefinite articles, real nouns, headings and quotations. Footnotes are not
included in the word count provided they are used only to give citations or other brief
information. If footnotes are used more extensively to provide commentary then these
additional words may be counted.
The marks will be reduced by the percentage by which the word limit was exceeded.
Students are required to make a declaration of the number of words used in their
assignment. A misstatement of the number of words may be considered by the University
as academic dishonesty amounting to student misconduct.
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Unit Outline
Use of non-discriminatory language
The University of Western Australia Senate has affirmed support for the principle of nondiscriminatory language. Teachers in this unit are committed to the use of nondiscriminatory language in all forms of communication. Both students and staff should
avoid the use of discriminatory language in this unit. This applies to both oral and written
communication.
Discriminatory language is that which excludes or refers in abusive terms to those of a
particular gender, race, age, sexual orientation, citizenship or nationality, ethnic or
language background, physical or mental ability, or political or religious views, or which
stereotypes groups of people. This is not meant to preclude or inhibit legitimate academic
debate on any issue; rather it is a means of opening debate to all without the pressures of
the risk of ridicule.
Guidelines on avoiding discriminatory language can be found in Non-Discriminatory
Language: A guide for staff and students prepared by the Equal Opportunity Advisory
Committee. This pamphlet is available from the Equity Office, or on the WWW at:
http://www.acs.uwa.edu.au/hrs/policy/part04/6.htm.
For further guidelines on ways to avoid written discriminatory language, please see Style
Manual for Authors Editors and Printers (Canberra: AGPS) 6th ed
Academic dishonesty
All forms of cheating, plagiarism and copying are condemned by the University as
unacceptable behaviour. The Faculty’s policy is to ensure that no student profits from
such behaviour. The following is a summary of the Law School’s policy on plagiarism
and collusion.
Plagiarism occurs when a person takes the words or ideas of another and presents them
as his or her own, without acknowledging the original source.
Collusion is where two or more students work together and submit the same or similar
work for assessment as if it were the independent work of the student submitting it.
Deliberate plagiarism and collusion are forms of academic fraud and as such are viewed
as serious misconduct by the Law School and the University. Even unintentional
plagiarism is unacceptable, because it results from sloppy scholarship and falls below the
standards of attribution expected in academic work.
A full statement of the Law School's policy on plagiarism and collusion, including advice
to students on how to avoid infringing the policy, is available from the Law School home
page and the Business Law home page.
All written work submitted for assessment must carry a declaration by the student that the
work complies with the policy, and an acknowledgement that the assignment may be
electronically examined for evidence of plagiarism or collusion.
All suspected cases of deliberate plagiarism or collusion will be investigated by a
committee appointed by the Dean. Penalties for plagiarism or collusion include the loss of
marks, fines, and suspension.
Supplementary and deferred examinations
Supplementary Examinations
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Evidence Study Guide Semester 2 2007
Students who fail a unit will only be permitted to sit a supplementary examination if they
fall into one of the following categories:
(i)
A student who receives a final mark of between 45 and 49 per cent in Legal
Process, Contract 1, Criminal Law 1, Torts 1, Property 1or Administrative Law 1 will be
awarded automatic supplementary assessment in the unit.
(ii)
A student who receives a final mark of between 45 and 49 per cent in Contract 2,
Criminal Law 2, Torts 2, or Property 2 will be awarded automatic supplementary
assessment in the unit provided that the student is in the second semester of their Law
studies.
(iii)
A student who is in the final semester of their LLB degree and who receives a
final mark of between 45 and 49 percent in a unit will be awarded automatic
supplementary assessment provided that the unit in question is the one remaining unit
required to complete the LLB degree.
(iv)
A student who receives a final mark of between 45 and 49 per cent in a unit
where the only form of assessment available is an examination (other than a “take-home”
examination) will be awarded automatic supplementary assessment in the unit.
Students re-examined by supplementary examination are classified pass or fail.
Enquiries concerning entitlement to, and scheduling of, supplementary examinations
should be directed to the Associate Dean.
The supplementary examination will be on all material covered in the unit (ie material
covered in Semesters 1 and 2 in the case of a year long unit).
Deferred examinations
A student may be permitted to take a deferred examination in one or more units if the
Dean of the Faculty is satisfied that for medical or other exceptional reasons the candidate
was either (a) substantially hindered in preparation for an examination; or
(b) absent from or unable to complete an examination.
Students wishing to apply for a deferred examination must complete the necessary
application form and hand the application form and any attachments to the Associate
Dean. The latest date such an application can be submitted is three University working
days after the date of the relevant scheduled examination.
Requests for special consideration
The Board of Examiners may give special consideration to medical or other exceptional
and unavoidable factors which may have substantially hindered the student's preparation
for or performance in an examination in cases where the student was still actually able to
sit the scheduled examination and could not be available for or benefit from taking a
deferred examination.
There is no discretion to award further supplementary assessment outside of those
conditions listed above. Students in the Faculty of Law who apply for special
consideration will, in appropriate cases, be awarded deferred examinations. Applications
should be made to the Associate Dean before the examination period, or where that was
not possible within 3 working days of the examination.
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Unit Outline
Appeals against academic assessment
If students are unhappy with their mark for assessable work in a Law School unit, they
should, in the first instance, speak to the Unit Coordinator.
If students feel they have been unfairly assessed, they have the right to appeal their mark
by submitting an Appeal against Academic Assessment form to the Head of School and
Faculty Office. The form must be submitted within twelve working days of the formal
despatch of your unit assessment.
It is recommended that students contact the Guild Education Officers to aid them in the
appeals process. They can be contacted on +61 8 6488 2295 or
education@guild.uwa.edu.au. Full regulations governing appeals procedures are available
in the University Handbook, available online at
http://www.publishing.uwa.edu.au/handbooks/interfaculty/PFAAAA.html .
Information and advice on the appeal procedure and a booklet entitled Appeals against
Academic Assessment is available from the Associate Dean, Faculty Administrative
Officer and the Student Guild.
Students who have been awarded a fail grade and who are contemplating an appeal
should be aware that in the Law School, as a matter of course, all fail scripts are required
to be second-marked before the publication of results.
Charter of student rights
This Charter of Student Rights upholds the fundamental rights of students who undertake
their education at the University of Western Australia.
It recognises that excellence in teaching and learning requires students to be active
participants in their educational experience. It upholds the ethos that in addition to the
University's role of awarding formal academic qualifications to students, the University
must strive to instil in all students independent scholarly learning, critical judgement,
academic integrity and ethical sensitivity.
Please refer to the guild website the full charter of student rights, located at
http://www.guild.uwa.edu.au/info/student_help/student_rights/charter.shtml.
Student Guild contact details:
The University of Western Australia Student Guild
35 Stirling Highway
Crawley WA 6009
Phone: (+61 8) 6488 2295
Facsimile: (+61 8) 6488 1041
E-mail: enquiries@guild.uwa.edu.au
Website: http://www.guild.uwa.edu.au
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Evidence Study Guide Semester 2 2007
Enquiries
General enquiries of a non-academic nature
General enquiries of a non-academic nature, such as enrolment questions and admission
requirements should be directed in the first instance to the Faculty Administrative Officer
(6488-2961) in the Student Centre, Law Link Building.
Enquiries of an academic nature
Questions of an academic nature, such as selection of electives and overloads should be
directed to the Associate Dean of the Faculty. Appointments to see the Associate Dean
can be made with Law School Reception. Enquiries that relate to the administration or
assessment of a particular unit should be directed to the unit co-ordinator.
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Unit Outline
Week 1 - Introduction to the Law of Evidence
Prescribed reading
Arenson and Bagaric, page xxxix – xivi OR Waight and Williams Chapter 1.
Administrative issues

Class structure

Lecture times

Assessment
Some introductory comments…..
From the very beginning a student of evidence must accustom himself (herself!)
to dealing as wisely and understandingly as possible with principles which
impeded freedom of proof. He /she is making a study of calculated and
supposedly helpful obstructionism.
Maguire; Evidence – Common Sense and Common Law, pp 10-11
Evidence involves a study of the rules and principles regulating the collection and
presentation of facts and information in both civil and criminal court proceedings. In
summary the law of evidence is a system of rules which determine what evidence may be
admitted as proof of disputed facts at trial. These rules will impact on how a trial is
conducted, the evidence which may be admitted or excluded and for what purpose the
evidence may be used. Evidence may take the form of testimony, documents, physical
objects and anything else presented to the judge and/or jury.
The first thing to remember is that only relevant evidence is admissible. This sounds
logical however actually determining what is relevant has been the cause of much judicial
(and student!) consternation. Thayer in Preliminary Treatise on Evidence1 noted;
There is a principle - not so much of a rule of evidence as a presupposition
involved in the very conception of a rational system of evidence...- which forbids
receiving anything irrelevant, not logically probative. How are we to know what
these forbidden things are? Not by any rule of law. The law furnishes no test of
relevancy. For this, it tacitly refers to logic and general experience - assuming
that the principles of reasoning are known to its judges and ministers, just as a
vast multitude of other things are assumed as already sufficiently known to them.
Later the passage continues;
There is another precept…namely that unless excluded by some rule or principle
of law, all that is logically probative is admissible. This general admissibility,
however, of what is logically probative is not, like the former principle [that is
that irrelevant facts are inadmissible] a necessary presupposition in a rational
1
1898 Rothman Reprints, USA, 1969, pp 264-266, Aronson and Hunter at 672
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Evidence Study Guide Semester 2 2007
system of evidence there are many exceptions to it…In an historical sense…
[w]hat has taken place, in fact, is the shutting out [of certain evidence] by the
judges of one and another thing from time to time; and so gradually, the
recognition of…[certain exclusionary rules]. These rules of exclusion have had
their exceptions; and so the law has come into the shape of a set of primary rules
of exclusion; and than a set of exceptions to these rules.
Therefore the prima facie rule is that all evidence that is relevant will be admissible
subject to certain exclusionary rules. Why do we need these exclusionary rules? Because
if we were to admit all evidence gathered in relation to a particular matter we may
encounter a number of difficulties. Firstly the evidence may be extremely prejudicial to
the accused or the defendant. Certainly we could argue that all evidence is prejudicial that is the idea - to build the case against a particular person. However what if the
evidence is extremely prejudicial but inherently unreliable, has been obtained illegally or
was hearsay? Think about the following example - Tom is on trial for the murder of Jerry.
Tom denies the allegations however the following evidence has been gathered by the
police;





testimony from Rastus, a habitual criminal who has an axe to grind with Tom. He
claims that Tom got drunk one evening and confessed to the murder,
testimony from Tom’s wife, Maggie,
a confession from Tom which was obtained after he was held in police custody for
24 hours without access to a lawyer,
evidence that Tom has previous convictions for car theft and drug dealing, and
testimony from Mrs Codd, the owner of the local fish and chip shop, that she
overheard one of her customers say to another that Tom was the murderer. The
customer cannot be found.
As you will have probably worked out yourself there are major problems with all these
pieces of evidence. What are these problems? Do you think the evidence should be
admitted? Why/why not?
We have seen that evidence that is otherwise admissible can be excluded by the operation
of the exclusionary rules. But it can also work the other way. There are also inclusionary
rules. Therefore take the example of Mrs Codd. Her evidence is hearsay as she merely
overheard another conversation and was repeating the contents of that conversation. The
customer participating in the conversation cannot be found - otherwise they could have
come to court to give direct testimony of their conversation and the reasons why Tom was
the murderer. (Unless of course that was hearsay too) The evidence would be excluded
under the rule against hearsay which is an exclusionary rule. However if the statement
could be said to be part of what is termed the res gestae evidence which may otherwise be
hearsay may be admissible. This is because in the circumstances the events were actually
held to be “part of the transaction”. Therefore, if Jerry was being assaulted outside Mrs
Codd’s shop and, during the course of the assault, a person ran into the shop and said,
“Tom is killing Jerry”, the statement may been held to be part of the res gestae and thus
be admissible. What if the assault had finished when the words were spoken? Sound
confusing? It is sometimes but you’ll soon get the hang of it. Rules, rules, rules but at
least the cases are mildly interesting.
There is also another factor which may tell against the admission of evidence. Otherwise
admissible evidence may also be excluded through the operation of a judicial discretion.
Therefore a piece of evidence may pass our requirements of relevancy but the judge may
14
Unit Outline
choose to exclude the evidence due to factors such as unfairness, the prejudicial effect of
the evidence or improper nature by which the evidence was obtained. So with this very
basic introduction lets proceed with the course…..
The law of evidence in Australia
The law of evidence in Western Australia is derived from a number of sources:
(i) the common law;
(ii) the Evidence Act 1906 (WA);
(iii) the Evidence Act 1995 (Cth), and
(iv) miscellaneous legislation.
The Course of a Trial
We will now discuss some preliminaries (a bit of scene setting) and then address some of
the fundamentals of evidence. Basically we will be looking at the hurdles we have to
jump to ensure evidence, whether it be oral testimony, a document, an expert’s opinion or
whatever, is admitted and is considered by the finder of fact. In summary we will see that
evidence will be admissible and therefore capable of being received by a court in
circumstances where
- the evidence is sufficiently relevant and
- does not infringe an exclusionary rule and
- the evidence is not excluded by judicial discretion.
Sound simple? Let’s look at this in more detail…..
 Prescribed reading
Waight and Williams Chapter 1 & 3 OR Arenson and Bargaric Chapters 1 & 2.
Court proceedings (again very brief)








Pleas
The jury
Witnesses
Examination in chief, Re examination, rebuttal and reopening
No case submissions
Summing up
The verdict and sentencing
Appeals
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Evidence Study Guide Semester 2 2007
The judge and jury
 The role of the judge and jury
 The Voir Dire
 Functions of the judge and jury
 Judicial control of the jury
 Aids to proof
The Burden and standard of proof







The legal burden,
The evidential burden,
The tactical burden,
The standard of proof,
No case submissions.
No case to answer
The standard of proof on a voir dire.
Direct evidence and Circumstantial evidence.
Note that direct evidence is evidence that establishes directly a fact in issue.
Circumstantial evidence is evidence of a fact from which a fact in issue can be inferred.
Comparison and examples
Circumstantial evidence
(i) Motive
Plomp v R (1963) 110 CLR 234 (W&W page 31
(ii) Relationship between accused and the victim
Wilson v R (1970) 44 ALJR 221 (W&W page 34)
(iii) Habit
Eichstadt v Lahrs [1960] QdR 487
Relevance and Admissibility
 Prescribed reading
Arenson and Bagaric (A&B) Chapter 1
 Additional reading
McNicol and Mortimer, Butterworths Tutorial Series – Evidence 3rd Edition Chapter 2
These articles are for general interest only – do not feel obliged to read them.
Roberts, Methodology in Evidence: Facts in Issue, Relevance and Purpose, (1993) 19
Mon LR 68
Hodgson, The Scales of Justice: Possibility and proof in Legal Fact Finding, (1995) 69
ALJ 73
In summary: Only evidence which is relevant is admissible.
Relevance is a matter of law for the judge.
The weight to be attached to admissible evidence is a matter of fact for the jury.
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Unit Outline
What are we trying to prove?
Facts in Issue
The facts in issue are the main facts or subordinate (or collateral) facts. The main facts in
issue are all those facts which the plaintiff or the prosecution must prove in order to
succeed.
W&W state at page 1;
What the facts in issue are in a given case is determined first by the substantive
rules of law; secondly by the charge and plea in criminal cases and by the
pleadings in civil cases; and thirdly, by the manner in which the case is
conducted.
The main facts will include any further facts that the defendant or the accused must prove
in order to establish a defence or excuse, as opposed to simply denying the case made out
by his or her opponent.
Subordinate or Collateral Facts in Issue
The two most important examples of subordinate or collateral facts in issue are
 those which reflect on the credibility of a witness and
 those which affect the admissibility of certain types of evidence.
 facts which affect the exercise of a judicial discretion.
W&W note (again page 1) that an alternative way of expressing the same requirement is
to say that evidence must be probative of a fact in issue. Evidence is directly relevant to a
fact in issue when the evidence itself bears on the probable existence or non existence of
that fact. Evidence is indirectly relevant to a fact in issue when it affects the probative
value of evidence said to be directly relevant to a fact in issue.
General Rule
As a general rule all evidence sufficiently relevant to a fact in issue or to the credibility of
a witness before the Court is admissible and all evidence that is not sufficiently relevant
should be excluded.
Relevance and Admissibility
What do we mean by “Relevance”?
Hollingham v Head (1858) 4CB(NS) 388, 140 ER 1135 (page 2 A&B)
Remember! Evidence will be regarded as admissible and therefore capable of being
received by a court in circumstances where
 the evidence is sufficiently relevant and
 does not infringe an exclusionary rule and
 the evidence is not excluded by judicial discretion.
Logical relevance and legal relevance
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Evidence Study Guide Semester 2 2007
Stephen, Thayer, McCormick and Wigmore - Students should note the table in McNicol
and Mortimer at page 18.
R v Buchanan [1966] VR 9
Horvath v R [1972] VR 533
*R v Stephenson [1976] VR 376 (page 4 A&B) Students should note the brief discussion
on page 9 A&B regarding the more recent application of the sufficient relevance
approach in R v Stajkovic [2004] VSCA 84 (18 May 2004)
For a Western Australian perspective on relevance and admissibility see Jeppe v R (1985)
61 ALR 383
There has recently been confirmation by the High Court as to the importance of relevance
as a key principle underlying the law of Evidence. Note that this case deals with s55 of
the Evidence Act 1995 (Cth).
*Smith v R (2001) 206 CLR 650



What were the facts in issue in this case?
What were the grounds of appeal?
What were the objections to the admissibility of the policemen’s evidence?
Note the comments of Gleeson CJ, Gaudron, Gummow and Hayne JJ
As is always the case with any issue about the reception of evidence,
identification evidence being no exception, the first question is whether the
evidence is relevant. No attention was given to this question in the arguments
advanced at trial, or on appeal to the Court of Criminal Appeal, but that question
must always be asked and answered. Further, although questions of relevance
may raise nice questions of judgment, no discretion falls to be exercised.
Evidence is relevant or it is not. If the evidence is not relevant, no further
question arises about its admissibility. Irrelevant evidence may not be received.
Only if the evidence is relevant do questions about its admissibility arise. These
propositions are fundamental to the law of evidence and well settled. They reflect
two axioms propounded by Thayer and adopted by Wigmore:
"None but facts having rational probative value are admissible",
and
"All facts having rational probative value are admissible, unless some specific
rule forbids."
In determining relevance, it is fundamentally important to identify what are the
issues at the trial. On a criminal trial the ultimate issues will be expressed in
terms of the elements of the offence with which the accused stands charged. They
will, therefore, be issues about the facts which constitute those elements. Behind
those ultimate issues there will often be many issues about facts relevant to facts
in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did
here, the question of relevance must be answered by applying Pt 3.1 of the Act
and s 55 in particular. Thus, the question is whether the evidence, if it were
accepted, could rationally affect (directly or indirectly) the assessment by the
tribunal of fact, here the jury, of the probability of the existence of a fact in issue
in the proceeding.
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Unit Outline



Was the evidence in this case relevant? Why/why not?
Do you agree with the majority?
Compare the judgment of Kirby J. Did Kirby J regard the evidence as relevant?
How does Kirby J describe the test of relevance pursuant to section 55?
Judicial discretion
Preliminary
Please note that our discussions regarding discretion at this stage will be
introductory. We will examine the various discretions as we proceed through the
course. As a result don’t worry if it seems a little unclear at the moment – you will
come to understand over the course of the semester.
The nature of discretion
Under both the common law and the Evidence Act 1995 (Cth), a trial judge has a general
discretion to exclude otherwise admissible evidence. In a criminal case a trial judge has
the discretion to exclude legally admissible evidence if;
 the prejudicial effect of the evidence outweighs the probative value of the
evidence,
 the evidence is unfair to the accused (the fairness discretion), or
 the evidence has been unfairly obtained (the public policy discretion).
Note the potential for overlap between the three discretions. R v Foster (1993) 113 ALR
1. Some commentators suggest the first two discretions could really be treated as one.
What do you think?
Discretion
General
discretion
Examples
Cth Evidence Act
S135 (nb applies to
civil and criminal
proceedings.)
Probative value
is exceeded by
prejudicial
effect
Fairness
discretion
Similar fact evidence,
Identification evidence
S137 (nb applies
only in criminal
proceedings.)
Evidence which is unfair to the accused due to
its unreliable/prejudicial nature eg the
circumstances under which a confession was
made.
Circumstances where evidence has been
obtained improperly, illegally or irregularly. For
example the methods used to obtain a
confession and/or the failure to follow statutory
procedures.
S 90 (nb applies
only in criminal
proceedings.)
Public policy
discretion
S138 (nb applies to
civil and criminal
proceedings)
We will discuss briefly the operation of these discretions. Students should generally refer
to *R v Swaffield; Pavic v R (1998) 192 CLR 159 (but don’t get too bogged down at this
stage!) We will look at the fairness discretion in much more detail in relation to the
admissibility of confessions (week 12) In relation to the public policy discretion please
read the following extracts from Bunning v Cross (1978) 141 CLR 54 and note the High
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Evidence Study Guide Semester 2 2007
Court’s approach in relation to the public policy discretion per Stephen and Aicken JJ
pp79-80
The first material fact in the present case, once the unlawfulness involved in the
obtaining of the "breathalyzer" test results is noted, is that there is here no
suggestion that the unlawfulness was other than the result of a mistaken belief on
the part of police officers that, without resort to an "on the spot" "alcotest", what
they had observed of the appellant entitled them to do what they did. The
magistrate himself described what occurred as an unconscious trick, a phrase
which, whatever its precise meaning, is at least inconsistent with any conscious
appreciation by the police that they were acting unlawfully. This impression is
consistent with the evidence as a whole; no deliberate disregard of the law
appears to have been involved. The police officers' erroneous conclusion that the
appellant's behavior demonstrated an incapacity to exercise proper control of his
car may well have been much influenced by what they observed of his staggering
gait. Unlike the magistrate, they were unaware that the appellant suffered from a
chronic condition of his knee joints which could, apparently, affect his gait. If the
unlawfulness was merely the result of a perhaps understandably mistaken
assessment by the police of the inferences to be drawn from what they observed
of the appellant's conduct this must be of significance in any exercise of
discretion. Although such errors are not to be encouraged by the courts they
are relatively remote from the real evil, a deliberate or reckless disregard
of the law by those whose duty it is to enforce it.
The second matter to be noted is that the nature of the illegality does not in this
case affect the cogency of the evidence so obtained. Indeed the situation is
unusual in that the evidence, if admitted, is conclusive not of what it
demonstrates itself but of guilt of the statutory offence of driving while under the
influence of alcohol to an extent rendering him incapable of having proper
control of his vehicle To treat cogency of evidence as a factor favouring
admission, where the illegality in obtaining it has been either deliberate or
reckless, may serve to foster the quite erroneous view that if such evidence be but
damning enough that will of itself suffice to atone for the illegality involved in
procuring it. For this reason cogency should, generally, be allowed to play no part
in the exercise of discretion where the illegality involved in procuring it is
intentional or reckless. To this there will no doubt be exceptions: for example
where the evidence is both vital to conviction and is of a perishable or evanescent
nature, so that if there be any delay in securing it, it will have ceased to exist.
Where, as here, the illegality arises only from mistake, and is neither deliberate
nor reckless, cogency is one of the factors to which regard should be had. It bears
upon one of the competing policy considerations, the desirability of bringing
wrongdoers to conviction. If other equally cogent evidence, untainted by any
illegality, is available to the prosecution at the trial the case for the admission of
evidence illegally obtained will be the weaker. This is not such a case, due to the
mistaken reliance of the police, when they first intercepted the applicant, upon
what they thought to be their powers founded upon s. 66 (2) (c) of the Act.
A third consideration may in some cases arise, namely the ease with which the
law might have been complied with in procuring the evidence in question. A
deliberate "cutting of corners" would tend against the admissibility of evidence
illegally obtained. However, in the circumstances of the present case, the fact that
the appellant was unlawfully required to do what the police could easily have
20
Unit Outline
lawfully required him to do, had they troubled to administer an "alcotest" at the
roadside, has little significance. There seems no doubt that such a test would have
proved positive, thus entitling them to take the appellant to a police station and
there undergo a "breathalyzer" test. Although ease of compliance with the law
may sometimes be a point against admission of evidence obtained in disregard of
the law, the foregoing, together with the fact that the course taken by the police
may well have been the result of their understandably mistaken assessment of the
condition of the
applicant, leads us to conclude that it is here a wholly equivocal factor.
A fourth and important factor is the nature of the offence charged. While it is not
one of the most serious crimes it is one with which Australian legislatures have
been much concerned in recent years and the commission of which may place in
jeopardy the lives of other users of the highway who quite innocently use it for
their lawful purposes. Some examination of the comparative seriousness of the
offence and of the unlawful conduct of the law enforcement authority is an
element in the process required by Ireland's Case (1970) 126 CLR 321
Finally it is no doubt a consideration that an examination of the legislation
suggests that there was a quite deliberate intent on the part of the legislature
narrowly to restrict the police in their power to require a motorist to attend a
police station and there undergo a "breathalyzer" test. This last factor is, of
course, one favouring rejection of the evidence. However it is to be noted that by
the terms of s. 66 (1) the legislation places relatively little restraint upon "on the
spot" breath testing of motorists by means of an "alcotest" machine. It is
essentially the interference with personal liberty involved in being required to
attend a police station for breath testing, rather than the breath testing itself
(albeit by means of a more sophisticated appliance), that must here enter into
the discretionary scales.
The magistrate does not appear to have considered some of the above criteria. He
seems to have much relied upon what he regarded, we think erroneously, as the
"inherent unfairness" of what occurred and to have stressed the prejudicial nature
of the evidence, which was only prejudicial in the sense that it was by statute
made conclusive of the guilt of the appellant. He also does not seem directly to
have accorded any weight to the public interest in bringing to conviction those
who commit criminal offences.
In the end we believe that the balance of considerations must come down in
favour of the admission of the evidence.
Appeals from the exercise of Judicial Discretion In the marriage of Richards (1976) 10
ALR 230
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Evidence Study Guide Semester 2 2007
Week 2- The Course of the Trial
Prescribed reading
A&B Chapter 4
COURSE OF EVIDENCE
Order of witnesses
Briscoe v Briscoe [1968] P 501
Exclusion of witnesses
R v Tait [1963] VR 420
The right to begin
In criminal cases where there is a plea of not guilty, the Crown has the right to begin
calling witnesses because there must be invariably some issue upon which the evidential
burden of proof is borne by the prosecution. Exceptions with regard to special pleas will
be discussed in lectures.
In civil cases, the plaintiff has the right to begin if he bears the evidential burden on any
issues raised by the pleadings including the quantum of damages.
THE ADVOCATES’ SPEECHES
In criminal cases, the prosecution opens, and then the defence is permitted to open. The
prosecution then calls evidence. The accused may or may not call evidence. At the end of
the trial, the prosecutor sums up leaving the accused with a right of reply.
In civil cases, assuming that he has the right to begin, the plaintiff opens the case to the
court, calls his witnesses and sums up if the defendant does not call witnesses. The
defendant then replies and thus has the final word. If the defendant does call witnesses,
the plaintiff does not sum up at the conclusion of his case, but the defendant opens his
case, calls his witnesses and sums up leaving the plaintiff with the right of reply.
PRESENTATION
Generally, the parties or their Counsel have the right to determine what witnesses they
will call and in what order they will call them. Note that in criminal cases the accused
should be called before any of his witnesses. He/she ought to give his/her evidence before
he/she has heard the evidence and cross-examination of any witness he/she is going to
call.
EXAMINATION IN CHIEF
The object of examination in chief is to obtain testimony in support of the version of the
facts in issue or relevant to the issue which the party calling the witness contends.
Remember your aim is to prove or disprove the facts in issue so witnesses are called to
support the facts you desire to establish.
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Unit Outline
There are four main points to remember about examination in chief:
1. As a general rule, witnesses may not be asked leading questions;
2. A witness may refresh his memory by referring to documents previously prepared by
him
3. A witness cannot usually be asked about his former statements with a view to their
becoming evidence in the case or in order to demonstrate consistency.
4. A party may discredit his own witness only if the judge considers him to be hostile.
We will discuss all these points in lectures.
1. LEADING QUESTIONS
In examination in chief Counsel must not ask leading questions.
Leading questions are:
(a) Certain questions which suggest the desired answer or which put the disputed
matter to the witness suggesting a yes or no answer:
Example:
Did you see the car coming very fast from the opposite direction?"
This is a leading question. It is best to split it up, for example:
"Did you notice any traffic?"
"What direction did it come from?"
At what pace was it going?"
"What colour were the traffic lights?” or
(b) A question which assumes the existence of disputed facts (i.e. suggesting
evidence of facts not yet in evidence):
Example:
"What did you do after D hit you?"
"What did you do after D's car hit yours?
It may not yet have been decided whether in fact D had hit anybody by asking these
questions we are asking the witness about something that may have happened before it
was established it did in fact happen.
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Evidence Study Guide Semester 2 2007
"How much did X pay you?" It may not have been established that a payment had been
made.
Leading questions are regarded as objectionable due to the possibility of collusion
between the person asking the questions and the witness or the impropriety in suggesting
evidence of facts that are not yet in evidence.
Also a question answerable some way other than a yes or no answer will still be
objectionable if it rehearses lengthy details which the witness might not otherwise have
mentioned and by this supplies him with suggestions.
Leading questions are allowed on introductory or undisputed matters in order to save
time. For example, name, occupation, address and other disputed matters. This approach
can be used by prior arrangement with the other Counsel or until it becomes too
controversial to continue questioning in this way.
Mooney v James [1949] VLR 22
Moor v Moor [1954] 1 WLR 927
Also, it is permissible to use leading questions to alert the witness' mind to the subject of
inquiry. Nicholls v Dowding & Kemp (1815) 171 ER 408. There is a list of exceptions
on page 250 W&W.
Answers to leading questions are not inadmissible in evidence however the method by
which they are obtained can rob them of their significance.
Students should refer to s29 and ss37-38 Evidence Act 1995 (Cth).
2. REFRESHING MEMORY
There are a number of reasons why a witness may need to refresh his/her memory while
testifying, for example, lapse of time since the occurrence of the event, the facts to be
testified may be complex etc. Try to remember what you were doing this time last week,
month, year… Even if something is hard to forget details can fade in your memory. On
the other hand what if you spend your life working in, for example, a hospital emergency
room with lots of cases and pressure? Would it be easy to recall a particular accident or
the nature of an injury after a lengthy period of time? If the witness does refresh his
memory a question can arise as to whether the document from which the memory is
refreshed must be produced to the court.
There are two different cases:
(i) Where the witness sits in the witness box and refreshes his memory directly inside the
court.
(ii) Where the witness refreshes his memory from material outside the court.
(i) Inside the Court
A witness is allowed to refer to a document to refresh his/her memory provided certain
conditions are fulfilled. It is not necessary that the witness must exhaust his/her memory
24
Unit Outline
as to the whole of his narrative -he can refer to notes each time he reaches a gap in his
memory. Baffingo l1957] VR 303: Hetherington v Brooks [1963] SASR 321.
cf R v Van Beelen (1972) 6 SASR 534.(W&W 253)
A witness may obtain the leave of the court to refer to a document for the purpose of
refreshing memory. Conditions upon which memory can be refreshed by reference to a
document:
(i) The account must be made or verified by the witness
*R v Van Beelen (1972) 6 SASR 534.
(ii) The account should be made at a time when the facts were fresh in his witness’s
memory. R v Van Beeean(1972) 6 SASR 534 per Sangster J at 537.
(iii) It must be produced to the Court or opposite party on demand.
Walker v Walker (1937) 57 CLR 630. MacGregor (1984) 1 QdR 256.
S32 Evidence Act 1995 (Cth)
(i) Outside the Court
You can refresh your memory outside the court. There are four situations listed in King v
Bryant [1956] QSR 570.
(a) The witness looked at the document because he had no recollection at all apart
from the document i.e. no genuine recollection" is revived.
In this case, it is not the witness’ evidence at all really and he is just proving the
document. That is not proper as the witness in effect is giving oral secondary evidence of
an available and unproduced document.
The document "verified and adopted" by the witness must be produced to make the
evidence admissible.
Alexander l1975] VR 741.
(b) The witness had no recollection until he looked at the document and his memory
was rekindled.
i.e. He looked at the document out of court and his memory is genuinely rekindled.
Therefore, when he gets into the witness box he gives evidence from memory. Here it
does not matter whether the document is lost, not produced etc. It is the oral testimony of
the witness the court may or may not believe. Admissible without need to produce the
report.
(c) Matters of which the witness has an actual memory of everything contained in
the report.
This is admissible without having to produce the report.
(d) Matters of which the witness had at all times retained an actual memory but are
not in report - i.e. he could not refresh his memory as it was not in the report.
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Evidence Study Guide Semester 2 2007
This is admissible.
3. PRODUCTION OF THE DOCUMENT
There is an old rule that if a party calls to inspect a document held by the other party, the
other party is bound to put it in evidence if required. However, if it is simply to refresh
the witnesses memory, Counsel for the other party can just inspect the document without
making it evidence.
Walker v Walker.
Rule: If you as Counsel call for a document which has been used to refresh a witnesses
memory you will not find yourself in a Walker v Walker situation because you can call
for it, look at it and decide not to use it or cross-examine on it. BUT be careful to only
cross-examine on the parts used by the witness -if you go outside of this you must admit
the whole document into evidence.
MacGregor (1984) 1 QdR.
Kingston (1986) 2 QdR 114.
4. PRIOR CONSISTENT STATEMENTS
Students should read generally Waight and Williams pp 275-296.
 Exceptions
 Corke v Corke and Cook [1958] P 93
 Nominal Defendant v Clements (1960) 104 CLR 476
5. HOSTILE WITNESSES
A hostile witness is one who is not desirous of telling the truth at the instance of the party
calling him. You can show the judge as a matter of law the witness is hostile and then
cross examine at length accuse him and use proof of evidence as a prior inconsistent
statement. It is a matter of discretion for the Court.
Bastine v Carew - in deciding to treat the witness as hostile the judge must have regard to
the witness’ demeanour the terms of an inconsistent statement etc
McCleland v Bowyer (1961) 106 CLR 95 (W&W 297) - a witness is likely to be hostile if
he exhibits a general reluctance to answer questions.
Price v Bevan (1974) 8 SASR 81 (W&W 300)
Driscoll v R (1977) 137 CLR 517
R v Hadlow (1991) 56 A Crim R 11
Western Australia
See sections 20-21
Judicial control over time spent in trial on examination and cross examination of
witnesses.
Order 34 Rule 5A SCR(WA) (This also applies to cross examination)
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Unit Outline
CROSS EXAMINATION
There are two objects of cross-examination:
1. To weaken, qualify or destroy the case of the opponent.
2. To establish the party's own case by means of his opponent's witnesses.
A witness may be asked not only as to the facts in issue or directly relevant thereto bud
all questions which though otherwise irrelevant tend to impeach his credit.
R v Chin (1985) 157 CLR 671
The rule in Browne v Dunn:
1. Any matter upon which it Is proposed to contradict the evidence in chief of a witness
must be
put to him so he might have the opportunity to explain the contradiction. Basically, if you
want
to contradict a witness, do it clearly.
2. Failure to do this may be held to imply acceptance of the evidence in chief.
3. This is a rule of fairness which is strictly enforced.
4. It does not apply if it is manifestly obvious due to the pleadings and the trial that the
witness is being impeached.
5. The rule in Browne v Dunn is not as strict as regards the accused because is has been
through the committal and the trial and knows what has been saw which may be used to
impeach his credit.
An example is Allied Pastoral Holdings v The Federal Commissioner of Taxation [1983]
1 NSWLR 1
The Federal Commissioner of Taxation did not examine six witnesses with regard to a
specific provision which the Commissioner wanted to rely on his submissions. In other
words, the witnesses have no chance to explain.
Hurt J identified the rule in Browne v Dunn and outlined the reasons for it:
1. If you do not put to the witness specifically that he is wrong (i.e. you are contradicting
him) you deny his chance to explain under cross examination.
2. The rule gives the party calling a witness an opportunity to call corroborative evidence
which
in the absence of such a challenge is unlikely to be called.
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Evidence Study Guide Semester 2 2007
3. The witness can explain/qualify his own evidence In the light of contradiction of
which warning had been given and also if he can explain/qualify other evidence of which
the challenge is based.
Therefore, if as Counsel you:
(i) Fail to cross examine; or
(ii) Fail to put your parts of the case which contradict him but in addition you call other
evidence which contradicts him or invite the tribunal of fact to reject the evidence of the
witness when you fail to cross-examine him, you are in breach of the rule.
The rule applies to both civil and criminal proceedings.
Breach of the rule may result in an opponent being able to recall a witness even though
the case is closed
FINALITY OF ANSWERS ON COLLATERAL MATTERS
Counsel can cross-examination on
1. The issues;
2. Collateral matters.
When Counsel cross-examines on collateral matters he or she is stuck with the answers he
has given. The reason for this is to stop a multiplicity of issues confusing the matter.
What is a collateral matter?
Attorney General v Hitchcock (1847) 1Exch 19
Test - per Pollock C B:
If the answer of a witness is a matter which you would be allowed on your own part to
prove in evidence - if in had such a connection with the issues that you would be allowed
to give n in evidence - then it is a matter on which you may contradict him. i.e. if it is not
of this type It is collateral and consequently Counsel must accept the answer as final.
The most obvious of the collateral matters is the credibility of a witness.
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533.
A witness for the plaintiff in an action for damages arising out of an accident was asked
how he could account for his presence at the place where the accident occurred. He said
that he had been doing business at a particular bank for a Major Jarvie. The High Court
ordered a new trial on the grounds that the trial judge had wrongly permitted the manager
of the bank to give evidence that no business had been done for Major Jarvie on the day
in question.
Per McTiernan J:
28
Unit Outline
This evidence could throw no light whatsoever on the question whether the witness had
seen the accident or not. It could discredit the witness but it was incapable of
contradicting any act upon which proof of the opportunity which the witness had of
observing the accident depended."
cf Latham CJ (dissent):
The question whether the witness has gone to the bank for Major Jarvie had considerable
bearing on the truth of his evidence that he had been at the scene of the accident.
NB exceptions.
For a recent case from Western Australia with a detailed consideration of the collateral
evidence rule see Nicholls v R; Coates v R [2005] HCA 1. You should read this.
1. The fact that a witness has been convicted of a crime (s.23 Evidence Act (WA)).
Livingstone (1984) QdR
2. The fact that the witness is biased in favour of the party calling him.
Umanski (1961) VR 242
Smith v R (1993) 9 WAR 99
3. The fact that the witness has previously made a statement inconsistent with his
present testimony.
4. The fact that the moral character of the witness is such as to militate against his/her
telling the truth
5. Mental or physical ailments which may influence the person giving evidence
Toohey v Metropolitan Police Commissioner (1965) AC 595
RE-EXAMINATION
Students should refer to the extract from Mr Justice Wells in Waight and Williams at
page 333.
Re-examination must be confined to matters arising out of the cross-examination and new
matters may only be introduced with the leave of the judge.
R v Connell (1994) 12 WAR 133 at 209-210 and 216-217
Wojcic v Incorpoated Nominal Defendant [1969] VR 323 W&W 334
RE-OPENING
Hansford v McMillan [1976] VR 743 (W&W 338)
REBUTTAL
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Evidence Study Guide Semester 2 2007
There is a general principle of practice, not a rule of law, requiring all evidential matters
the Crown intends to rely on as probative of the guilt of the defendant to be adduced
before the close of the prosecution's case.
Evidence in rebuttal will only be allowed if it relates to a maker which the prosecution
was unable to foresee and this is stringently applied.
Of traditional importance is the relevance of such evidence to the defence of alibi. See
Killick vR (1981) 56 ALJR 35 (W&W 339).
The defence of alibi had been raised although the Crown had called no evidence in chief
to rebut the alibi. However, after the defence case had been closed evidence was called to
show that the accused account of his alibi was untrue.
By majority the High Court ordered a new trial for the following reasons:
1. Because of the earlier conduct of the case (prior to committal proceedings the accused
had consistently put forward the defence) the Crown should have foreseen that the
accused would rely on the alibi at the trial.
2. The submission that the evidence in rebuttal would have been admissible as evidence
in chief was rejected. The prosecution cannot give evidence in this proof of an alibi which
the accused has no intention of raising. R v Natasien [1972] 2 NSWLR 227 (W&W page
341)
THE FAILURE TO CALL EVIDENCE
Jones v Dunkel (1959) 101 CLR 298
Booth v Bosworth [2001] FCA 1453 (17 October 2001)
Weissensteiner v R (1993) 178 CLR 217
See too section 20 Evidence Act 1995 (Cth)
30
Unit Outline
Week 3 -Competence and compellability of witnesses
To date we have examined the preliminary concepts of relevance and admissibility.
We have also introduced you to judicial discretion (but there is much more to come
here!). Now we are going to start looking at the evidence itself. Think of this. We
have a prospective witness who is prepared to testify. The testimony is directly
relevant to a fact in issue. Sounds good? But…our witness is only eight years old. Or
our witness is married to the accused person. Do you see a potential problem here?
Why?
Prescribed reading
A&B Chapter 3
Waight and Williams Chapter 2
Introduction

General concepts

Competence and compellability vs privilege. Please note privilege will be dealt
with in week 10.
Students should refer generally to sections 6-17, 106A-S Evidence Act 1906 (WA).
In summary:
Competence
A witness who is competent may lawfully be called to give evidence. As a general rule all
persons are competent to testify BUT there are exceptions in respect of witnesses;
- who do not believe in a deity,
- children,
- persons who are intellectually impaired,
- the accused’s family, and,
- the accused.
Compellability
A witness who is compellable may be lawfully obliged to give evidence. Again as a
general rule a witness who is competent is also compellable BUT there are again
exceptions involving;
- the accused’s family,
- the accused,
- sovereign and diplomatic immunity.
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Evidence Study Guide Semester 2 2007
Oaths and affirmations generally
Witnesses usually give evidence after swearing an oath on the bible. In Western
Australia, if a person objects to being sworn and states as his or her ground for doing so
either that he or she has no religious belief or that the taking of an oath is contrary to his
or her religious belief, he or she is permitted to make a solemn affirmation: ss. 610,97,99,100A Evidence Act 1906 (WA), ss70-71 Justices Act 1902(WA) If the proposed
witness has a religious belief which is not opposed to the taking of oaths, but declines to
take the usual form of oath or declines or is unable to say what form of oath binds him or
her or he or she is unable to take a binding oath there is provision for the judge to declare
in what manner the evidence of such person shall be taken. This will usually be by
affirmation. Students should read generally ss97-106 Evidence Act 1906 (WA)
The Consequences of giving false evidence
Cabassi v Vila (1940) 64 CLR 130 (W&W 42)
Competence
 Witnesses who do not believe in a deity
Under the common law persons who did not believe in a deity were not competent to
testify. Today, such persons are competent to testify upon making a solemn
affirmation. Refer to the paragraph above for reference to the relevant statutory
provisions.

The evidence of children
Under the original rules of evidence children were not regarded as competent witnesses.
This situation was amended by legislation. Today children are competent witnesses
subject to the matters discussed below. It is important for students to note the provisions
of section 106A – 106R of the Evidence Act 1906(WA) regarding protections available for
child witnesses and other persons classified as “special” witnesses. Also, please be
aware of significant amendments in 2004 regarding these provisions.
The common law position
R v Brasier (1779) 168 ER 20 “A child can give evidence on oath if he has sufficient
knowledge of the nature and consequences of an oath”
Omychund v Barker (1744) 125 ER 1310 “Nothing but a belief in God and that He will
reward or punish us according to our desserts is necessary to qualify a man to take an
oath”(Sorry about the language – old cases.)
R v Brown [1977] QdR 220 (A&B 33) but compare Re Attorney General’s Reference of 1993
(1994) 73 A Crim R 567
Western Australia
Students should commence their study of this area by examining the various definitions in
section 106A.
A child under the age of 12 years will be permitted to give sworn evidence if it is understood by
the child when testifying that the giving of evidence is a serious matter and that he or she is
under an obligation to tell the truth that is over and above the ordinary duty to tell the truth. (See
section 106B) R v Stephenson (2000) 23 WAR 92
32
Unit Outline
Students should familiarise themselves with sections 106A – 106S Evidence Act 1906 (WA
and bring a copy of the legislation to lectures.
When is a child competent to give sworn evidence?
If a child is under the age of 12 years when is the child competent to give sworn evidence?
Section 106B(1),(2)
In Hamilton v R (you do not have to read this case – the extract below is sufficient)
unreported; CCA SCt of WA; Library No 970082; 4 March 1997, Malcolm CJ said:
"In my opinion, it is most important that the jury should hear the child's answers
and have the opportunity to observe the demeanor of the child when questioned
by the Judge. These matters are relevant to the weight which the jury may attach
to the evidence of the child."
“…...Because of the significance of the enquiry, it is important that it be
sufficiently detailed to enable an opinion to be formed with confidence."
Malcolm CJ then explained what he meant by a "sufficiently detailed" enquiry:
"First of all, it must be remembered that upon first being questioned by a Judge a
child is likely to be very nervous and, possibly, frightened. Consequently, in my
opinion, it is desirable that the child be first asked a series of questions designed
to overcome that nervousness such as questions about age, birthday, the school
attended, the grade the child is in and the number of children in the class. If
leading questions are avoided, this gives the child the opportunity to give a
substantive answer. It may also be helpful to enquire about any particular friends
at school, whether the child has a favourite subject or a favourite television
programme. Against the background of these questions, the witness might then be
asked, 'do you understand what it means to tell the truth?' A number of different
questions could then be asked to probe the answer to give examples such as,
'have any of your friends told you something that was not true?' The witness
could be asked whether he or she tells the truth to his or her teacher at school as
well as a question such as, 'do you sometimes make things up?' The consequences
of not telling the truth at school could be explored. The witness could be asked,
'do you know the reason why you have been brought here today instead of going
to school?', 'do you think it is important for you to be here today?', 'can you tell
me why?' Questions could also be asked to ensure that the witness understands
that he or she will have to answer questions about some things that are said to
have happened to them some time ago. Questions could also be asked to
determine whether the witness understands why these questions have to be asked
and answered to bring out whether he or she understands the importance of
answering the questions truthfully and the consequences of not doing so."

If a child under the age of 12 years is not competent to give sworn evidence
pursuant to section 106B see section 106C – unsworn evidence. Note section
100(2)
Disabilities/Intellectual impairment
Toohey v Metropolitan Police Commissioner [1965] AC 595
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Evidence Study Guide Semester 2 2007
Hoogwerf v R (1992) 63 A Crim R 302 How would this matter be dealt with under the
present provisions of the Evidence Act 1906 (WA)?
In People with an Intellectual Disability – Issues for Consideration of the Courts ,
Ministry of Justice, 2000 it is noted at page 19-20:
“Counsel and the court should keep in mind the characteristics of people with an
intellectual disability in the course of evidence and particularly in matters dealing
with confessional statements.
The court should consider the following issues:
Whether questions of counsel are short and contain one proposition,
Whether the use of leading questions is appropriate given recognition of the
dangers of eliciting affirming evidence
Whether frequent adjournments should take place to preserve concentration
The control of behaviour which may be seen as intimidatory towards the witness.
Special witness
The Acts Amendment (Evidence of children and others) Act 1992 (WA) sets out
the circumstances under which a person may be declared a special witness…and
provides for people to be declared a special witness by reason of an intellectual
disability.
The Act sets out the arrangements that may be made to provide support and
protection to the person on whom special witness status has been conferred…”
Special arrangements

Western Australia Section 106R
Bourne & Anor v Elliss [2001] WASCA 290 (27 September 2001)
Warnings
Bromley (1986) 161 CLR 315
As to whether a defendant is mentally fit to stand trial see Criminal Law (Mentally
Impaired Defendants) Act 1996 s9
Spouses and relatives of the Accused
Under the common law a spouse (not defacto spouse) was not a competent witness in
either civil or criminal proceedings. Other relatives, including an accused’s children (if
otherwise competent) or parents, were competent and compellable.
Pursuant to s7 Evidence Act 1906(WA), in civil matters a spouse or former spouse is
competent and compellable to give evidence on behalf of either or any of the parties to
the proceedings. On the other hand in criminal matters an accused’s spouse is a
34
Unit Outline
competent and compellable witness for the defence AND a competent and compellable
witness for the prosecution where the circumstances involve on of the matters listed in
section 9.
The Accused as a Witness (to be considered in more detail
shortly.)




At common law an accused was not competent to testify for the prosecution or a
co-accused,
An accused is now a competent but not compellable witness in his/her own
defence. See Criminal Code (WA) s360(1)
An accused is competent BUT NOT COMPELLABLE to give evidence of behalf
of a co-accused where the accused and the co-accused are tried together.
If there are separate trials OR a co-accused has pleaded guilty OR charges against
the co-accused have been dismissed he/she is competent and compellable for the
prosecution or defence.
Cultural Differences
Testifying in court is not an easy thing to do. This is especially the case where the witness
has no experience with the adversarial system. We have already seen that special
provisions are contained in the Evidence Act 1906(WA) regarding children and special
witnesses. What difficulties may witnesses encounter when testifying as a result of their
background, ethnicity etc?
Aronsen and Hunter note at para 19.17
“A witness’ cultural background can mean that the common law style of trial
seem alien and particularly confusing. A courtroom novice from a background
that is not white and Anglo-Saxon has few clues to assist them to participate in
the trial.”
Interpreters
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Evidence Study Guide Semester 2 2007
In criminal trials, there is a rule that an accused must be
physically present in court. The rule, it is said, is intended to
ensure that the accused is able to hear the case against him and to
have an opportunity to answer it. The same rationale is said to
inform the approach taken in the criminal courts with respect to
the use of interpreters. In the case of an accused who is not
sufficiently proficient in English to understand the proceedings or
to make himself understood, the trial judge must, as part of his
duty to ensure a fair trial, see to it that the accused receives the
assistance of a competent interpreter. For similar reasons, there
may be a need for the services of an interpreter in a civil
proceeding. Dietrich v The Queen (1992) 177 CLR 292 per Deane J
R v Saraya (1993) 70 A Crim R 515 at 516
Indigenous witnesses
Reading – These references are useful if you have a particular interest in this area
Kerr, Gratuitous Justice: A Review of the Queensland Criminal Justice Commission’s
Report into Aboriginal Witnesses in Criminal Courts, 1996 84(3) Indigenous Law
Bulletin 12 (This is available on Austlii)
Mildren, Addressing the Imbalance against Aboriginals in the Criminal Justice System,
(1997) 21 Crim LJ 7
M Walsh 'Interactional styles in the courtroom: An example from northern Australia' in J
Gibbons (ed) Language and the Law Longman House Essex 1994, 231
D Eades 'A case of communicative clash: Aboriginal English and the legal system' in J
Gibbons (ed) Language and the Law Longman House Essex 1994, 242.
Students may also read an extract from the ALRC Report number 69 Equality before the
Law. In Chapter 5 (Access to Justice) there is an interesting piece on specialist women's
legal services for Aboriginal and Torres Strait Islander women. The extract is available
on the ALRC link to AUSTLII.
36
Unit Outline
The Accused as a Witness
We will concentrate on an accused person in a criminal matter and the rules of evidence
which regulate such a person’s competence to testify, refusal to testify or make a claim of
privilege. In doing so we will see that there is actually some real law behind a few lines
that you have probably heard on television! Therefore watch out for:
“I will not answer that question on the grounds it may incriminate me.”
“You have the right to remain silent…”
Prescribed reading
A&B Chapter 6, W&W chapter 10.
The Accused giving sworn evidence.
The ground rules
At common law the accused is not a competent witness for the prosecution or defence.
Pursuant to statute an accused is
NOT COMPETENT to give evidence for the prosecution
COMPETENT BUT NOT COMPELLABLE to give evidence on his/her own
behalf
COMPETENT BUT NOT COMPELLABLE to give evidence on behalf of a coaccused
SO when will an issue of the privilege against self incrimination arise vis a vis an
accused?
When the accused has chosen to testify on his/ her own behalf or on behalf of a coaccused. Nb WAEA s8(1)(d)
What about issues relating to credit?
Again statute dictates the extent to which an accused who elects to testify can be crossexamined about prior convictions, bad character etc. WAEA s8(1)(e)
REMEMBER - The accused has a right to silence. Therefore no adverse inferences can be
drawn against an accused who chooses not to testify. (But nb Weissensteiner discussed
below.)
The accused as a witness for the prosecution
 Common law
 Western Australia
See generally section 8(1) WA – This is a very important section – read it carefully!
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Evidence Study Guide Semester 2 2007
Accused As Witness In His or Her Own Defence
Section 8,97(2) Evidence Act 1906 (WA),Section 360(1) Criminal Code(WA)
Students should read generally W&W at pag2 461-488
In short you can refuse to answer questions which may incriminate you! But what does
this mean, how far does the privilege go and what is the relationship with an accused’s
right to silence pre-trial and in the trial itself?
Issues relating to the Accused giving sworn evidence
The Prohibition and the Permission – s. 1(e) and (f) of the Criminal Evidence Act
1898(UK) – ss8(1)(d) and (e) Evidence Act 1906(WA)
Jones v DPP [1962] AC 635
Attwood v R (1960) 102 CLR 353
Exceptions
Questions may be asked in cross-examination of an accused where;
1. They are relevant to the facts in issue
2. The accused places his or her character in issue or where imputations are made
against a prosecution witness.
Malindi V R [1967] ! AC 439 (W&W 470), R v Winfield (1939) 27 Cr App R 139, R v
Preston [1909] 1 KB 568, Selvey v DPP [1970] AC 304 (W&W 472)
3. The accused gives evidence against a co-accused
In some states the permission of the trial judge must first be obtained before crossexamination can take place on prohibited matters. This is not the case in WA however
there is a common law discretion to supervise and control the conduct of an accused’s
cross examination. Phillips v R (1985) 159 CLR 45
The right to remain silent

Silence by the accused to an allegation of guilt
Is it possible to infer from silence that there has been an adoption by acquiescence of the
statement.?
R v Ireland (No. 2) (1970) 126 CLR 321

Silence in the face of an allegation before a warning is given.
Would a reasonable person be expected to refute the statement?
Hall v R (1971) I WLR 298
Parkes v R (1976) 1 WLR 1251

38
What if people are on equal terms and there is an allegation made by one
person about the other and he is silent but there is a person in authority
in their presence?
Unit Outline
R v Salabattin (1983)VR 521 @ 525-7.
The demeanour and physical reactions of the accused may support the inference of
an acquiesce of the truth of the statement - demonstrate a consciousness of guilt.
Woon (1964) 109 CLR 529.
The Right to Remain Silent

Pre-trial silence
Bruce v R (1987) 74 ALR 219
*Petty and Maiden v R (1991) 173 CLR 95
R v Ireland (1970) 126 CLR 321
Woon v R (1964) 109 CLR 529
Nicholas v R (1998) 72 ALJR 456
Cleland v R (1982) 151 CLR 1
R v Swaffied, R v Pavic (1998) 173 CLR 159
 Late explanation or late defence
Petty and Maiden v R (1991) 173 CLR 95
Glennon v R (1994) 119 ALR 706
 Judicial comment
Bruce v R (1987) 74 ALR 219
 At trial
Evidence Act 1906 (WA) s8(1)(c)
R v Butterwasser [1948] 1KB 4
*Weissesteiner v R (1994) 68 ALJR 23
Azzopardi v R, Davis v R (2001) 75 ALJR 931
The requirement for a warning
McKinney v R (1991) 171 CLR 468 (W&W 765)
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Evidence Study Guide Semester 2 2007
Week 4 Identification Evidence
Imagine you have witnessed a bank robbery. It is likely to be unexpected, quick and very
frightening. Therefore although you may have witnessed the robbery, and indeed seen the
perpetrators, would you recognise them again? How accurate would you recollection be if
you were to observe one of those persons, for example, in a police line up or in a
photograph? We are all familiar with the term, eye-witness’, but how reliable is this form
of testimony when identification is an issue? Let’s go one step further. Maybe nobody
saw the robbery but one of the robbers left behind, for example, some of their blood or
hair. Can this be used to identify the robber? How could this be done?
Prescribed reading
A&B Chapter 14, W&W Chapter 11
Additional reading (Not essential)
Jackson and Hedon-Armstrong, The Insufficiency of Identification Evidence based on
Personal Impression Identification [1986] Crim LR 203
Re, Eyewitness Identification – Why so many mistakes? (1984) 58 ALJ 509
Holden, The Admission of Expert Evidence of Opinion as to the potential unreliability of
evidence and visual identification, (1988) 16 MULR 521

What is identification evidence?

Objections to identification evidence
Types of identification evidence
*Smith v R (2001) 206 CLR 650
 The dock
 Eyewitnesses
R v Burchilli [1981] LR 611 (A&B 562)
R v Domican (1992) 173 CLR 555 (A&B 581)
 Identification parades
Alexander v R (1981) 145 CLR 395 (A&B 562)
 Photographic identification
Alexander v R (1981) 145 CLR 395
R v Hertschel [1988] VR 362 (A&B 576)
R v Kirby [2000] NSWCCA 330 (13 September 2000)
 Voice identification
R v Hentschel (A&B 576)
40
Unit Outline
Other methods of identification (We will touch on this too in our discussion of real
evidence)





Testimony from identifications made outside court
Fingerprints
Identikit/Photofit
Film and video
Tracker Dogs
DNA – the great debate
Students please note – it is not essential that you read these articles – it is just that this is
such an interesting and topical area some of you may find them interesting. I will
endeavour to discuss this area in some depth in lectures and tutorials. Students should
also note the provisions of the Criminal Investigation (Identifying People) Act 2002
(WA). The Act was passed on 28 June 2002.
Seminar papers
Use of DNA in the Criminal Justice System Seminar presented by the Institute of
Criminology, University of Sydney, 11 April 2001 (Papers available on reserve)
B.Hocking, H.McCallum, A.Smith, C.Butler, Human Rights and the Criminal Justice
System, (1997) 3 Australian Journal of Human Rights
D. Meagher, The Quiet Revolution – A Brief History of Analysis of the Growth of
Foresnic Police Powers in Victoria, (2000) Criminal Law Journal 76 particularly at page
84 onward.
M.Redmayne, Doubts and Burdens: DNA Evidence, Probability and the Courts, (1995)
Criminal Law Review 464
H.Roberts, Interpretation of DNA Evidence in Courts of Law: A Survey of Issues (1998)
Australian Journal of Forensic Sciences 30(1) 29
K. Tranter and E.Webb, Genes R Us – Ethics and Truth in DNA, (2001) 25 Alternative
Law Journal 169
In R v Karger (2001) SASC 64 (29 March 2001) Mullighan J listed cases where DNA
profiling had been uitlised by Australian courts.
Warnings
Dominican v R
(1992) 106 ALR 203
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Evidence Study Guide Semester 2 2007
Week 6 Opinion Evidence
I may have an opinion on a number of issues. You probably couldn’t care less about my
opinion. However we are presumably living in a democracy and I am free (within certain
limitations) to express those opinions. What about if I wanted or someone wanted me to
express my opinion in court? A witness should not venture an opinion. They should
describe, for example, what they have experienced, seen, heard through the use of their
senses.. They must not express opinions – it is up to the tribunal of fact to make
conclusions and the witness is there to provide evidence to assist in reaching that
conclusion. But a witness should not ‘gazump’ the role of the tribunal of fact by
expressing their own opinion/conclusion. However like everything in this subject there
are exceptions. In some cases witnesses CAN express an opinion. Firstly we need to
assess whether the witness expressing an opinion is a ‘lay’ witness or an expert witness.
Then we have to examine the circumstances where the testimony of such persons will be
admissible.
Prescribed reading A&B Chapter 11 W&W Chapter 13
42
Unit Outline
A witness must give a plain account of the actual perception of his or her senses, devoid of
inference, evaluation, interpretation, belief or opinion.
However, the courts of necessity have had to create exceptions to the general rule. The two
generally stated exceptions are:
(i) the opinion of lay persons where this is a generally accepted means of stating observations in
summary form;
(ii) the evidence of experts where the tribunal of fact requires assistance to draw inferences
from the facts in evidence. Persons with special knowledge by virtue of their training, study or
experience may testify as to their opinions based on their knowledge.
For expert opinion evidence to be admissible the trial judge must be satisfied that;
 The tribunal of fact requires assistance in deciding the issues if the matters under
consideration are not within the common knowledge which judges and jurors are
presumed to have.
 There is a relevant field of expertise; and
 The witness possesses the necessary qualifications or experience within that field.
At common law experts could not testify as to the ultimate issue’ (although nb Murphy discussed
below).
What is an opinion?
Compare fact and opinion
R v Yilditz (1983) 11 A Crim R 115
Barker v R (1988) 34 A Crim R 141
An opinion is an inference drawn from observed and communicable data, and does not
include an assertion as to what the witness would have done in certain events. Allstate
Life Insurance Co v Australia & New Zealand Banking Group (No 32) (1996) 64 FCR 73
The role of opinion evidence

Lay witnesses
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Evidence Study Guide Semester 2 2007
Sherrard v Jacob [1965] NI 151 (A&B475)
R v Whitby (1957) 74 WN(NSW) 441 (A&B 476)

Expert Witnesses
Expert evidence is only permitted in fields which are "an organised branch of science or
issue knowledge" and only where the tribunal of fact is not competent to draw relevant
inferences from the facts by reason of ordinary experience. Faulkner [1987] 2 QdR
263,Taylor v Harvie [1986] 2 QdR 137 The witness must be an expert in that field. The
facts upon which an expert's opinion is based must be proved by admissible evidence.
There must be a basis upon which opinion evidence may be given. Ramsay v Watson
(1961) 108 CLR 642.
Clark v Ryan (1960) 103 CLR 486
Weal v Bottom (1966) 40 ALJR 436
R v Gilmore [1977] 2 NSWLR 935
R v Runjanjic and Kontinnen (1991) 56 SASR 114
Button v R [2002] WASCA 35 (25 February 2002)
The principles upon which expert evidence is admitted
1. Does the tribunal of fact NEED the expert testimony?
 The Common Knowledge Test
Transport Publishing Co Pty Ltd v Literature Board of Review (1957) 99 CLR 111
Cf Murphy v R (1989) 176 CLR 94
 Syndrome Evidence
R v Runjanic (1991) 56 SASR 114
Osland v R (1998) 159 ALR 170
 Credibility
Farrell v R (1998) 72 ALJR 1292
2. Areas of knowledge (Fields of expertise)
Refer to comments in W&W page 569-570 regarding recognised fields of expertise.
 The Frye Test
R v Lewis (1987) 29 A CrimR 267
R v Sopher (1992) 74 A CrimR 21
 New areas of expertise
Casley Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314
3. Establishing the witness as an expert
Weal v Bottom (1966) 40 ALJR 436
Clark v Ryan (1960) 103 CLR 486
R v Gilmore [1977] 2 NSWLR 935
44
Unit Outline
R v Yildiz (1983) 73 A CrimR 115
Ultimate Issues
As a general rule an expert witness may not be asked the question which the court itself
has to decide. This rule does not apply where the court cannot decide the issue without
the assistance of an expert.
Allstate Life Insurance Co v Australia & new Zealand Banking Group Ltd (No 33) 1996
64 FCR 79,
Note the comments in this regard in Murphy.
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Evidence Study Guide Semester 2 2007
Week 7 Confessions and admissions
This week we will be discussing admissions and confessions. How many of you are fond
of the Wizard of Id? Many of the cartoons in this series make amusing comments about
aspects of the criminal justice system. A favourite is when the King is celebrating the
Spook’s signed confession – a blood-stained one! While this example is clearly extreme
the issue of the voluntariness of confessions is an emotive one. Clearly if a person makes
a confession it has to be made in an act of that person’s free will. If it is not made
voluntarily and was made as a result of, for example, inducement or oppression the
admissibility of the confession will be jeopardised. Similarly what if the person to whom
the confession is attributed claims the confession was not made AT ALL. (yes we have
had a bit of press on this issue of late!) To protect persons making confessions and to
provide proof of the contents of the confession statutory provisions now deal with video
taping interviews. In theory, where a person is being interviewed in the presence of police
and makes a confession the video will establish that there was no untoward conduct on
behalf of the police and that the confession was an act of the person’s free will. This is a
very interesting and topical subject so lets proceed…
Prescribed reading
A&B Chapter 12
W&W Chapter 17
Admissions by words or conduct
A&H state at page 324 that the difference between an admission and a confession is that a
confession admits guilt of the whole offence and can form the sole basis of a conviction.
An admission makes some acknowledgment of facts adverse to the accused but falls
short of a global confession.
Matters not within the accused’s knowledge
Anglim and Cooke v Thomas [1974] VR 363
Equivocal statements
R v Doolan [1962] QdR 449
Statements made to or in the presence of the accused
 Adopting the statement of another
R v Salahattin [1983] 1 VR 521
 Consciousness of guilt
46
Unit Outline
Woon v R (1964) 109 CLR 529
Driscoll v R (1977) 137 CLR 517
 Denials
Edwards v R (1993) 178 CLR 193
Silence of the accused to an accusation of guilt.
Confessions
This section commences with two basic propositions:
 Police may not arrest or detain suspects in custody for the purpose of conducting or
continuing their investigations. Furthermore there is a limit upon the time during which
police may detain a suspect in custody during the time the investigation may be continued.
 A confession is admissible only if it is voluntary.

Time limits on custody
S6(2) Bail Act 1982 (WA)
Williams (1986) 60 ALJR 636
S23C Crimes Act 1914 (Cth)

Factors to consider regarding confessions
When looking at whether a confession is admissible or not, you should consider the
following:
1. The common law rules re: voluntariness.
2. Any relevant statutory provisions, for example Evidence Act 1995 (Cth) Section 81
A confession is a direct and express oral or written form of admission made by an
accused person. Doyle [1987] 2 QdR 732.
A confession of a crime is only admissible against the person making it if it was
voluntary.
McDermott v R (1948) 76 CLR 501
If the accused speaks because he is overborne his confessional statement cannot be
received in evidence and it doesn't matter by what means he has been overborne.
If the statement is the result of duress, intimidation, persistent importunity or sustained
and undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of
the common law that a confessional statement cannot be voluntary if it is preceded by an
inducement held out by a person in authority and the inducement has not been removed
before the statement was made.
The question is whether the statement is not obtained by fear of prejudice or hope of
advantage held out by a person in authority. See R v McPherson (1986) QdR 536.
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An inducement is anything that suggest the outcome of a confession may obtain some
beneficial result in connection with the prosecution eg. "It will go better for you if you
confess".
"If you confess, you can visit your sick daughter in hospital". Harz & Power [1967] 1 AC
760. "If you confess, we wont charge your brother".
R v Joyce (1957) 3 All ER 623.
In this case it was held that a confession must be excluded if it is made in consequence of
any inducement or threat of a temporal character connected with the accusation relating to
the charge that is held out to the accused person by a person having some authority over
the subject matter of the charge.
The inducement is used in the ordinary sense of persuasion aimed at producing some
willing action as opposed to compulsion by force or fear of force to produce some
unwilling action. Bodsworth v R (1968) 2NSWR 132.
There are two relevant tests set down in Bodsworth:
1.
Avoid putting ingenious constructions on colourless words so as to detect a hint
of improper inducement. Rather construe the words only accordingly to their natural
obvious and common sense meaning.
2.
Apply the rule so as not to exclude confessions unless the inducement is of a
temporal character. Merely to urge a person on moral or religious grounds to
speak out or tell the truth is insufficient.
It is for the prosecution to establish that the confession to police was made freely and
voluntarily and not under the influence of improper inducement.
Smith (1959) 2QB 35.
A soldier was charged with murder. After the fight the sergeant major put his company on
parade and said he would keep them there until he had learnt who did it. The accused
confessed.
Held. The confession was tainted by the threat or inducement and was therefore
admissible. However a later confession was held to be admissible and was not affected bv
the first.
If two statements are made, note that only if the time limit between the two statements,
the circumstances existing at the time and the caution are such that it can be said that the
original threat or inducement has been dissipated, can the second statement be admitted
as a voluntary statement.

Oppression
Clearly a person can be induced to make a confession by oppression.
R v Jones 1970 91 WN (NSW) 77.
R v Preistly (1965) 51 Cr App R1.
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Unit Outline
The word oppression imports something which tends to sap and has sapped that free will
which must exist before a confession is voluntary. What may be oppressive as regards a
child, an invalid or an old man or somebody in experienced in the ways of this world may
turn out not be oppressive when one finds the accused is of a tough character and an
experienced man of the world.
Consider the individual period of questioning. Length of time in between. Proper
refreshment.

Characteristics of the person who makes the statement.
R v Prager 1972 1 All England Reports 1114.
Sinclair v R (1946) 73 CLR 316

Person in Authority
"Any magistrate, any police or other officer or person having custody of the defendant,
the prosecutor and any person acting on behalf of the prosecutor for the purpose of having
the defendant in custody or preferring a complaint against him."
See Dixon J in McDermott who mentions police, the prosecution and "others concerned
in preferring the charge". In a Bodsworth situation where an inducement is held out in the
presence of an accused and a person in authority by somebody else (ie. not a person in
authority) the person in authority should disassociate himself from the inducement to
avoid the operation of this rule.
Dixon& Smith (1992) 62 ACrimR 465
Discretionary Exclusion
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Evidence Study Guide Semester 2 2007
In summary
 Fairness
The trial judge may exercise a discretion to exclude an admissible confession if he/she
forms the view that its reception would make the trial unfair. Even if a confession is
voluntary there is still scope for the trial judge to exclude it in the exercise of a common
law discretion. The onus here is on the accused and the standard of proof is to establish a
basis that there is such unfairness or impropriety that it would be unfair to admit on the
balance of probabilities.
Examples of this may be breaches of the Judges Rules, misrepresentations by police,
disadvantaged groups or impropriety.
 Public policy
There is also a discretion to exclude evidence where there are improper methods used to
obtain it. See Bunning v Cross which was applied to confessional matters in Cleland.
Note R v McDermott where Dixon J distinguishes between imperative rules of law
requiring the rejection of confessional statements unless made voluntarily and the
discretion of the court to exclude evidence of such statements if the manner in which they
were obtained is considered improper.
PROPRIETY AND FAIRNESS
Basically, this discretion is based on propriety and fairness. In McDermott it was stated
that all that seems to be intended is that the trial judge should form a judgement on the
propriety of the means by which the statement was obtained by reviewing all the
circumstances and considering the fairness of the use made by police of their position in
relation to the accused.
Lee v R (1950) 82 CLR 133.
Van Der Meer (1988) 62 ALJR 656
The questions for the judge are as follows:
1. Whether in all the circumstances it would be unfair to use the statement against
the accused, regard being had to the propriety of the means by which the
statement was obtained.
2. No question of discretion can arise unless the statement was voluntary.
3. There is no onus on the Crown to show a reason for the exercise of the
discretion in favour of admitting the statement. It is for the accused to bring
himself within the exception.
4. If the judge thought the impropriety would lead to an untrue admission then he
should reject the statement and vice versa.
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Unit Outline
Other Matters
Judicial and legislative guidelines
Judges Rules 1912 and 1964
Police and Criminal Evidence Act
A.300 Police Commissioners Guidelines for Questioning Suspects.
A304-315
Essential concerns
 Cautioning the suspect and making the suspect aware that he/she need not speak.
 Conduct of an interview
 Aboriginals or persons without familiarity with the English language.
Anunga (1976) 11 ALR 412
 Children
Waye (1983) 11 ACrimR 422
 Injury
Buchanan (1966) VR 9
 Intoxication
Williams
Right to a lawyer
Driscoll v R (1977) 15 ALR 47.
This case involved a trial for murder.
D's solicitor had a conversation with a Detective Sergeant and made a formal application
to be present at any interview.
Driscoll was interrogated in the early hours of the morning. The solicitor made attempts
to find him at Russell Street Police Headquarters but obtained no co-operation. Driscoll
denied he made the record of interview. The Crown sought to establish the solicitor tried
to see Driscoll.
It was held there was no fundamental right to have a solicitor present, i.e. the failure to
allow a solicitor to be present during the interrogation would not in itself render the
evidence of the interrogation inadmissible. But the court said it is fair and proper practice
to allow a solicitor to be present if the person being interrogated requests his presence.
Also, such a failure might be ground for the trial judge to reject the confession in exercise
of his discretion.
Gibbs J noted any circumstances which tended to show the statement was/was not
voluntary is admissible voir dire and also at the trial because it goes further than the
collateral matter of attacking the credit of the policeman but goes to show whether the
statement was actually made.
Unsigned records of interview
Again see Driscoll. Gibbs J noted the mere existence of a record is no safeguard against
perjury. “If the police officers are prepared to give false testimony as to what the accused
said, it may be expected that they will not shrink from compiling a false document as
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Evidence Study Guide Semester 2 2007
well. The danger is that a jury may erroneously regard the written record as in same way
strengthening or corroborating the oral testimony. Moreover, the record, if admitted will
be taken into the jury room when the jury retire to consider their verdict and by its very
availability may have an influence upon their deliberations which is out of all proportion
to its real weight. For these reasons it would appear to me that in all cases in which an
unsigned record of interview is tendered, the Judge should give the most careful
consideration to the question whether it is desirable in the interests of justice that it should
be excluded. The exclusion of unsigned records of interview should not hamper the police
in their increasingly difficult task because oral evidence of the interview itself may of
course be given and the record is available to refresh the memory of the police witnesses
if necessary. If the police wish to have supporting evidence of an interrogation there are
other methods such as tape recording or the use of video tape which would not be open to
the same objection. In any case, the paramount requirement is that the trial should be
conducted fairly and for the reasons I have given, I consider that the admission of an
unsigned record would in some cases tip the scales unfairly against the accused.
Stephens v R (1985) 59 ALJR 477.
Driscoll was applied here. Unless the probative value of an unsigned and disputed record
of interview of an accused by the police outweighs its prejudicial effect, a proper exercise
of a trial judges discretion requires that it should not be admitted in evidence.
McKinney v R (1991) ALJR 281.
Video-taping police interviews with suspects
Students should obtain a copy of Chapter 60A of the Criminal Code (WA) This chapter is
titled "Videotaped Interviews"and was inserted into the Criminal Code (WA) by s 5 of the
Acts Amendment (Jurisdiction and Criminal Procedure) Act 53 of 1992. The chapter
contains sections 570 to 570H. The chapter came into operation on 4 November 1996,
almost four years after the amending Act was assented to on 9 December 1992. Subject to
stated exceptions, s 570D, the key provision, renders inadmissible on the trial of an
accused person for a serious offence, as defined, evidence of an admission made by the
accused to a police officer at a time when there were reasonable grounds to suspect that
he had committed the offence, unless the evidence is on videotape. Students should read
over sections 570 to 570H of the Criminal Code(WA) Note particularly section 570D
CRIMINAL CODE - SECT 570D
570D. Accused's admissions in serious cases inadmissible unless videotaped
(1) In this section -"admission" means an admission made by a suspect to a member of the Police Force or
an Anti-Corruption Commission official, whether the admission is by spoken words or by
acts or otherwise;
"serious offence" means an indictable offence of such a nature that, if a person over the
age of 18 years is charged with it, it can not be dealt with summarily and in the case of a
person under the age of 18 years includes any indictable offence for which the person has
been detained.
(2) On the trial of an accused person for a serious offence, evidence of any admission by
the accused person shall not be admissible unless --
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Unit Outline
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable
excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of
justice, justify the admission of the evidence.
(3) Subsection (2) does not apply to an admission by an accused person made before there
were reasonable grounds to suspect that he or she had committed the offence.
(4) For the purposes of subsection (2), "reasonable excuse" includes the following -(a) The admission was made when it was not practicable to videotape it.
(b) Equipment to videotape the interview could not be obtained while it was reasonable to
detain the accused person.
(c) The accused person did not consent to the interview being videotaped.
(d) The equipment used to videotape the interview malfunctioned.
Section 570D inserted by No. 53 of 1992 s.5; amended by No. 35 of 1999 s.5.
Mallard v R
Sell v R
Gangemi (1997) 17 SR(WA) 176
Anthony Karstaedt Videotaping Police Interviews with Suspects, E Law - Murdoch
University Electronic Journal of Law, Vol 4, No 1 (March 1997)
Mallard, Special Leave application to the High Court Mallard v The Queen P52/1996 (24
October 1997)
Coates v The Queen [2005] HCA 1
Students should also refer to s23V Crimes Act 1914 (Cth)
Contrast s23V and 590D
Pollard (1993) 67 ALJR 193
Hetherington (1994) 68 ALJR 418
Aboriginal suspects
S49 Aboriginal Affairs Planning Authority Act 1972 (WA)
ILLEGALITY/PUBLIC POLICY
The trial judge may exercise a discretion to exclude an admissible confession (and any
other evidence) if it has been obtained illegally. Cleland (1982) 43 ALR 619
Students should refer to chapter 12 A&B and the cases therein.
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Evidence Study Guide Semester 2 2007
Week 8 Character and Disposition (Lecture 1) and Propensity
Evidence (Lectures 2&3)
Imagine I am a car thief. A car is stolen. What is your initial suspicion? Is this
appropriate? If you were a member of a jury and you knew I was a car thief would you be
more/less likely to conclude I was guilty? BUT! Cars are stolen everyday. I am not the
only person to ever steal a car. Just because I have stolen cars before does not result in a
conclusion that I have stolen THIS car on THIS occasion. However what if I have a
particular technique which is unique to me and I always this technique when I steal cars?
Or what if I only steal a particular make of car? This narrows it down a bit. For example
if that same, unique method which is exclusive to me has been used on the car it seems
likely that the person who stole the car is in fact, me. In these lectures we will examine
evidence of character and then move onto the very interesting area of similar fact
evidence.
Prescribed reading
A&B Chapter 5
W&W Chapters 8&9
(a) Character and disposition
General comments
Subject to two qualifications, character evidence is evidence of general reputation in the
relevant community, not evidence of propensity (specific acts or events).These
qualifications will be discussed in lectures.
R v Rowton (1865) 169 ER 1497
R v Lowery [1974] AC 85
S23 Evidence Act (WA)
Character of witnesses
Evidence of bad character of a witness is evidence going to the credibility of that witness.
A party cannot bolster the credit of his/her own witnesses by adducing evidence in chief
of a witness’ good character.
Students should note:
(i) Credibility or character of one’s own witness
(ii) Credibility or character of the opponents witness
Character of the Accused
Evidence of bad character or prior convictions of an accused person is inadmissible in
evidence in chief of the prosecution in criminal proceedings but in cross examination of
the accused his/her bad character or prior convictions may be put;
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Unit Outline



In response to the accused putting his/her good character in issue
In response to the accused attacking the character of the prosecutor or
prosecution witnesses
Problems between co-accused (see below)
Attwood v R (1960) 102 CLR 353
Butterwasser v R [1948] 1 KB 4
Lowery v R [1974] AC 85
R v Trimboli (1979) 21 SASR 577
The accused may call witnesses to speak of his or her good character or cross-examine
the witnesses for the prosecution with a view to inducing them to do so. These defence
witnesses may be cross-examined by the prosecution. The prosecution might then call
evidence in rebuttal.
Witnesses to character can not speak of specific acts of the accused, only his or her
general reputation.
The prosecution can only give evidence of the accused's character in chief (other than as
similar fact evidence) if the accused has raised the matter by cross-examination. If the
accused attacks a prosecution witness's character he does not raise his or her own, he or
she raises that of the prosecution witness only.
Melbourne v R (1999) 198 CLR 1
Students should now refer to Evidence Act (WA) s8(1)(e)(ii).
Norfolk v The Queen [2002] WASCA 118 (10 May 2002)
Tiet v The Queen [2006] WASCA 32 (2 March 2006)
Robinson v State of Western Australia [2006] WASCA 90 (29 May 2006)
Co-accused re the accused
Lowery v R [1974] AC 85
Ss 8(1)(e)(iii) Evidence Act (WA)
Character of the victim
Re Knowles [1984] VR 751 (W&W 370)
Osland v R (1998) 73 ALJR 173
Sexual offences
R v Stanley (1988) 2 Qd R 294
Bull v R, King v R, Marotta v R (2000) 171 ALR 613
Evidence Act 1906(WA) ss36A- 36BC
Circumstances where character is in issue
Plato Films Ltd v Speidel (1961) AC 1090
Goody v Oldhams Press Ltd [1977] 1 QB 333
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Evidence Study Guide Semester 2 2007
Propensity (Similar Fact) Evidence
“Similar Facts” is a misleading expression - it deals with the admissibility of evidence of
similar conduct by a person on other occasions to prove the offence or civil it is alleged
he or she committed. This area is also referred to as propensity evidence and disposition
evidence. Such evidence is referred to under Part 3.6 “Evidence of tendency and
coincidence” under the Evidence Act 1995 (Cth) We will focus on the situation in WA
Common Law
“The prosecution may not adduce evidence of the character or of the misconduct of the
accused on other occasions…if that evidence shows that the accused had a propensity to
commit crime, or crime of a particular kind, or was the sort of person likely to have
committed the crime charged, unless the evidence is sufficiently highly probative of a fact
in issue to outweigh the prejudice it may cause.” (Cross 639)
Evidence of propensity is generally excluded because of its prejudicial nature.
BUT, propensity evidence which discloses the accused’s disposition may be admissible if
it is highly probative of the facts in issue.
Development

Makin v Attorney General of NSW [1894] AC 57
Per Lord Herschell
The First Limb
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew
that the accused person has been guilty of criminal acts other than those covered by the
indictment for the purpose of leading to the conclusion that the accused is a person likely
from his criminal conduct or character to have committed the offence for which he is
being tried.
The Second Limb
On the other hand the mere fact that the evidence adduced tends to shew the commission
of other crimes does not render it inadmissible if it be relevant to an issue before the jury,
and it may be so relevant if it bears upon te question whether the acts alleged to have
constitute the crime charged in the indictment were designed or accidental, or to rebut a
defence which would otherwise have been open to the accused.
Note Arenson’s comments at page 267:
“That acknowledgement notwithstanding, it must be emphasised that a literal
interpretation of Lord Herschell’s formulation is inherently paradoxical and difficult, if
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Unit Outline
not impossible to reconcile with the similar fact evidence doctrine under present common
law doctrine.”

Development of ‘identifiable categories’.
 The Boardman approach – probative value v prejudicial effect.
Boardman v R [1975] AC 421, DPP v P [1991] 2 AC 447
Boardman (as discussed by Mason CJ., Deane and Dawson JJ in Pfennig at 477):
“However, before Boardman was decided, the received doctrine was that mere propensity
evidence was inadmissible; to be admitted the evidence must go to something other than
disposition. Boardman changed that received doctrine by discarding the earlier approach
to admission of similar fact evidence based on identifiable categories. Instead, in
Boardman, the House of Lords adopted as the guiding principle to determine the
admissibility of similar fact evidence the test whether the prejudice to the accused is
outweighed by the probative force of the evidence.”

The Australian Law
Perry v R (1982) 44 ALR 449 – a “striking similarity” case!
Per Gibbs J. The evidence must not be just technically relevant, it must be really material
and have a high probative value. The degree of similarity was a pointer to strength of
probative value - a striking similarity has a high probative value.
Per Brennan J. Probative value must clearly transcend the prejudicial effect.
Per Wilson J. There must be a sufficiently high degree of probative value to outweigh the
inevitable prejudice it will cause.
Sutton v R (1984) 58 AIJR 60 – another “striking similarity” case
Per Gibbs J. Strikingly similar as used in Boardman has been widely adopted. See too
Dawson J. @ 463, Deane J.@ 460 and Brennan J. @ 451.
*Hoch (1988)165 CLR 292 – emphasis on concoction/improbability/coincidence.
Per Mason CJ., Wilson and Gaudron J.J. The strength of probative value is revealed in
striking similarity, underlying unity, system, pattern .... such that it raises as a matter of
common sense and experience the objective impossibility of some event having occurred
other than alleged by the prosecution.
Students please read this judgment especially pages 295-296
Thompson (1989) 63 ALJR 447 – emphasis on underlying unity/pattern
Harriman (1989) 63 ALJR 694 – emphasis on the relationship
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Evidence Study Guide Semester 2 2007

What is the test today?
Pfennig v R (1995) 127 ALR 99
To be admissible, the objective improbability of its having some innocent explanation is
such that there is no reasonable view of it other than as supporting an inference that the
accused is guilty of the offence charged. (Pfennig (1994-5) 182 CLR 461, per Mason CJ,
Deane and Dawson JJ at 481)
But compare McHugh J:
“If there is a real risk that the admission of such evidence may prejudice the fair trial of
the criminal charge before the court, the interests of justice require the trial judge to make
a value judgment, not a mathematical calculation. The judge must compare the probative
strength of the evidence with the degree of risk of an unfair trial if the evidence is
admitted. Admitting the evidence will serve the interests of justice only if the judge
concludes that the probative force of the evidence compared to the degree of risk of an
unfair trial is such that fair minded people would think that the public interest in adducing
all relevant evidence of guilt must have priority over the risk of an unfair trial.”
*Students should note too the continuing impact of Hoch - Guilt will not be the only
rational inference if the evidence is reasonably explicable on the basis of concoction
(Hoch v The Queen (1988) 165 CLR 292)
Responses to Pfennig and Hoch





The UK view
Incorporation in the Evidence Act 1995 (Cth)
State and Territory Legislation
Phillips v R
The UK
NB This is largely for the purpose of completeness – but you must read Boardman
and have a working knowledge of DPP v P.
R v Boardman 1975 AC 421
Similar fact evidence is admissible if there is such a close or striking similarity or
underlying unity that probative force could fairly be yielded.
Lord Cross at p. 457 The question must always be whether the similar fact evidence taken
together with the other evidence would do no more than raise or strengthen a suspicion
that the accused committed the crime with which he is charged or would point so strongly
to guilt that only an ultra-cautious jury if they accepted it as true, would acquit in face of
it. Although the admissibility of such evidence is a question of law, not of discretion, the
question must be one of degree.
DPP v P [1991] 2 AC 447
Note the criticism of Pfennig in R v H [1995] 2 AC 596
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Unit Outline
 Incorporation in the Evidence Act 1995 (Cth)
Has Pfennig impacted on the interpretation of ss97,98 and 101 of the Evidence Act 1995
(Cth)?
 State and Territory Legislation
Victoria
398A Crimes Act 1958(Vic)
 In all the circumstances is it just to admit the evidence?
 The possibility of reasonable explanation consistent with innocence is not relevant to
admissibility but can be considered as a matter of weight/credibility.
R v Best (For an excellent discussion of this case, and indeed the whole area, see
K.J.Arenson, Propensity Evidence in Victoria, (1999) 23 MULR 263)
Queensland
S132A Evidence Act 1977 (Qld)
Western Australia
S 31A Evidence Act 1906 (WA)
Donaldson v R [2005] WASCA 196 (17 October 2005)





Nb Roberts-Smith J
Adopted reasoning of Mazza DCJ.
Discussion of McHugh’s judgment in Pfennig
Possible operation of 31A
Collusion
31A. Propensity and relationship evidence
(1) In this section —
“propensity evidence” means —
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that
the accused person has or had;
“relationship evidence” means evidence of the attitude or conduct of the accused
person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an
offence if the court considers —
(a) that the evidence would, either by itself or having regard to other evidence
adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an
unfair trial, is such that fair-minded people would think that the public interest in
adducing
all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it
is not open to the court to have regard to the possibility that the evidence may be the
result of collusion, concoction or suggestion.

Latest development – Phillips v R [2006] HCA 4 (1 March 2006)
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Evidence Study Guide Semester 2 2007
Discussion of the place of Pfennig in 2006.
Criticism of lower court interpretations
Collusion
State and territory developments
Comments re SFE and consent
Civil Cases
Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 Jacara Pty
Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 (21 December 2000)
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Unit Outline
Weeks 9-10 Hearsay, Exceptions to Hearsay and Res Gestae
Many of you have been wondering what hearsay is all about. It can be likened to an
annoying relative who just keeps turning up everywhere and causing havoc! Never mind
– while the rule at common law has been strict there have been some signs of a more
flexible view. In the case of the Commonwealth legislation a much more liberal view of
hearsay has been taken and the exceptions widened. We will firstly deal with hearsay and
(the dreaded) implied assertions. We will then deal with the exceptions (briefly).
Prescribed reading
Arenson and Bagaric Chapters 9-10 (Don’t panic – its not as bad as it looks and we will
spend a fair bit of time in lectures discussing this area.)
In summary
Remember our basic rules – all evidence which is relevant is prima facie admissible
unless it is excluded by an exclusionary rule or by the judicial discretion.
We have looked at opinion, SFE and now we will examine hearsay.
If evidence is hearsay it will be rendered inadmissible.
To make things interesting there are many exceptions to the hearsay rule.
Also we must distinguish between hearsay at CL and hearsay under the CEA. The
definitions of hearsay differ between the common law and the act as do many exceptions.
Assertions of persons made out of court are inadmissible as evidence of the truth of that
which was asserted. Distinguish this from assertions offered only as proof that they were
actually made: this original evidence and is admissible wherever it has some relevance in
the case in this limited way.
Rationale for the rule against hearsay
The hearsay rule prohibits the admission of evidence (testimonial, documentary or real)
of an assertion of fact tendered to prove the truth of that assertion when the maker of the
statement is not called as a witness and so its truth cannot be tested by crossexamination.
The adversary system is based on oral testimony. The rationale against the rule against
hearsay lies in the fact that if a person is not called as a witness there is no opportunity to
examine the witness at the trial, see their demeanour or allow them to be cross examined.
McNicol and Mortimer note that a system which relies so heavily on oral testimony of
what people observed or perceived is likely to seriously mistrust reports by those people
of observations or perceptions which were only reported to them by other people.
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What is hearsay?
In summary, if the purpose of using an out of court statement is to establish the truth of
the statement the rule against hearsay will apply unless an exception applies.
If however you are using the statement foe another purpose the rule will not apply.
Read pp396 -399 A&B for a discussion of the justification for the hearsay rule.
Some illustrations
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Myers v DPP [1965] AC 1001
Ratten v R [1972] AC 378
R v Blastland [1985] 3 WLR 345
Implied hearsay
Students should read pp 420 – 421 A&B regarding implied assertions.
Walton v R (1989) 166 CLR 283
Cf Kamleh v R (2005) 213 ALR 97. Do the judgments of Kirby, Hayne and Heydon JJ
“signal the demise” of this aspect of Walton? Note the discussion at pages 431-432 A&B.
R v Benz (1989) 168 CLR 110
Intention or state of mind
R v Blastland [1985] 2 All ER 1095
Walton v R (1989) 166 CLR 283
Pollitt v R (1992) 66 ALJR 613
R v Benz (1989) 168 CLR 110
Students should refer to “A Hearsay Paradigm” on page 434 in A&B
Reform of the Hearsay Rule


The telephone exception.
‘Reliable’ evidence.
Common law and statutory exceptions to the hearsay rule
Common law exceptions
 Admissions
 Deceased persons
 Miscellaneous exceptions
Statutory exceptions
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Unit Outline
Res Gestae
The doctrine of res gestae is an expression concerning the admissibility of evidence by
reason of its overwhelming relevance. The expression itself simply means "the
transaction". Where an event/words spoken are regarded a part of the transaction the
evidence can be received even though it may infringe one or more of the rules against
similar fact evidence, opinion evidence, consistent prior statements the rule against
hearsay or other exclusionary rules.
Introduction
Res Gestae is an expression concerning the admissibility of evidence by way of exception
to a number of exclusionary rules. Your evidence may be relevant and prima facie
admissible however it could be excluded by the operation of an exclusionary rule, for
example
(a) evidence of bad character/similar fact evidence
(b) hearsay
(c) opinion evidence
(d) consistent prior statements
Nevertheless you may still be able to admit your evidence under the res gestae. Evidence
is admissible under the res gestae as an exception to;
 the rule against hearsay Brown v R (1913) 17 CLR 570
 evidence of propensity O’Leary v R (1946) 73 CLR 56
What is the Res Gestae?
 What is a transaction?
 There is a difference of opinion between the High Court and the House of Lords on
the basis for the admissibility of evidence under the res gestae as an exception to the
hearsay rule. The House of Lords is of the view that it is sufficient condition of
admissibility if a statement which would otherwise be hearsay is attended by enough
circumstances of reliability (ie spontaneous but need not be contemporaneous).
Andrews [1987] 2 WLR 413 (A&B 456), Mills [1995] 1 WLR 511 On the other hand
the High Court have insisted on contemporaneous involvement in the transaction.
Vocisano v Vocisano (1974) 130 CLR 267(A&B 455)
Nb R v Golightly (1996) 17 WAR 401
R v Kadibil [1999] WASC 67 (21 June 1999)
Main Heads of the Doctrine
There are four main heads to the doctrine of res gestae. They are:
(i) Incidents or events regarded as part of the transaction in issue.
O'Leary (1946) 73 CLR 566,
Heidt (1976) 145 SASR 574.
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(ii) Spontaneous statements
Brown (1913) 17 CLR 570 (A&B 454).
Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514.
Ratten v R
Vocisano v Vocisano (1974) 130 CLR 267 (A&B 455).
Walton (supra).
Pollitt (supra).
Gilbert No.2 (1907) 12 CCC 127.
Bull v R, King v R, Marotta v R [2000] HCA 24 (11 May 2000)
(iii) Statements made by a person as to his or her contemporaneous physical
sensations or general state of health. Ramsay v Watson (1961) 108 CLR 642.
(iv) Statements made by a person as to his or her state of emotion or belief.
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Unit Outline
Week 11 Privilege
Earlier in the semester we examined competence and compellability. These matters are
decided prior to the witness testifying. Therefore, a decision is made on a voir dire as to
whether, for example, a child is competent to give evidence. Issues relating to privilege
arise where a witness has taken and oath or affirmation and has commenced to testify.
Privilege is a legal right for a witness to refuse to testify in relation to information
covered by the privilege. It can attach to persons or classes of person. It can be the result
of the relationship between the parties, for example, communications between husband
and wife, or between a solicitor and client. A person who claims privilege can refuse to
answer questions which another person, not subject to the same privilege, would be
compelled to answer. Privilege applies to oral communications and to documents.
Prescribed reading
A&B Chapter 3
W&W Chapter 6

Additional reading – if you are particularly interested in this area. McNicol, The Law of
Privilege 1992 LBC, Australia
Comparison of Competence and Compellability and Privilege.
Common law privilege


Definition
The nature of privilege
Types of privilege:




Public interest privilege
The privilege against self incrimination
Legal professional privilege
Without prejudice privilege
Public interest privilege



Definition
How does PIP differ from other types of privilege?
How can PIP be claimed?
Sankey v Whitlam (1978) 142 CLR 1
Alister v R 91984) 154 CLR 404
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The Privilege Against Self- incrimination
Blunt v Park Lane Hotel Ltd [1942] 2 KB 253 at 257 (W&W 143)
“It is one of the inveterate principles of English law that a party cannot be compelled to
discover that which, if answered, would tend to subject him to any punishment, penalty,
forfeiture or ecclesiastical censure.” Redfern v Redfern [1891] P 139
In summary the privilege applies
 to all types of proceedings,
 in and out of court
 to natural persons NOT corporations
 to answering questions or producing documents (ie of a testimonial nature)
NOTE THE LEGISLATURE CAN ABOROGATE THE PRIVILEGE.
Breber v Perry [1961] SASR 177
Sorby v Cth (1983) 46 ALR 237
Pyneboard v TPC (1983) 45 ALR 609
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 118 ALR 392
Reid v Howard (1995) 69 ALJR 863
See generally section 24 Evidence Act 1906 (WA)
Students should note that in Western Australia common law privilege is preserved but a
special certification procedure exists where a judge can compel a witness to answer a
question or interrogatory and then grant the witness an immunity certificate. See sections
11 and 11A Evidence Act 1906(WA).
In relation to these provisions see Hugo v R [2002] WASCA 199 4 August 2002, (2000)
113 A Crim R 484. Other cases will be discussed in class for the purposes of illustration.
Legal professional privilege.
 The rule and its rationale
 The nature of the privilege
 The sole purpose test
 The dominant purpose test
 Exceptions
 Waiver
Grant v Downes (1976) 135 CLR 674
Baker v Campbell (1983) 57 ALJR 749
Esso Australia Resources Limited v The Commissioner of Taxation [1999] 168 ALR 123
ACCC v Daniels Corporation
Marital privilege
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Unit Outline
S.18 Evidence Act 1906 (WA)
nb section 100 Family Law Act 1975 (Cth)
Shenton v Tyler [1939] Ch 620
Without prejudice privilege
Field v Commissioner for Railways (NSW)(1957) 99 CLR 285 (W&W 230)
Lukies v Ripley (No 2) (1994) 35 NSWLR 283 (W&W 232)
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Week 12 Corroboration
Prescribed reading
A&B Chapter 15
Waight and Williams – Chapter 20
What is corroboration?
As a general rule, the court may act upon the uncorroborated testimony of one witness.
However in some cases it may be necessary that certain testimony be supported by
additional evidence being accepted as proving an issue or a judge may be required to give
the jury a warning as to corroboration. R v Baskerville [1916] 2 KB 658 It should be
stressed however that corroboration is largely becoming obsolete and has been the subject
of much judicial comment R v Cheema [1994] 1 All ER 639 at 650. Indeed in the
Evidence Act 1995 (Cth)sections 164(1)-(2) abolish any requirement for corroboration
except in cases such as perjury. Pursuant to section 164(3) there is no requirement that the
jury be warned of the dangers of acting on uncorroborated testimony. This general rule
however is subject to the provisions of section 165 (unreliable evidence). Corroboration
must;


be independent testimony R v Whitehead [1929] 1 KB 99
connect, or tend to connect, the accused with the crime
Particular types of evidence which may amount to corroboration




Physical condition
Lies Edwards v R (1993) 178 CLR193
Silence R v Whitehead [1929] 1 KB 99, R v Strausz (1977) 17 SASR 197
Propensity/conduct Hoch v R (1988) 165 CLR 292
Perjury
R v Hamid (1979) 69 Cr App 324
S164(2) Evidence Act 1995 (Cth)
Types of witnesses
Accomplices
Davies v DPP [1954] AC 378
Khan vR [1971] WAR 44
Turnbull and Davidson [1988] 1 QdR 266.
Webb v R (1994) 122 ALR 41
Children
Mental Illness Bromley v R (1986) 161 CLR 315
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Unit Outline
Sexual offences
Informers Pollitt v R (1992) 108 ALR 1
Mutual corroboration
Hoch v R (1988) 165 CLR 92
R v Cheema [1994] 1 All ER 639
Directions to the jury
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Evidence Study Guide Semester 2 2007
Week 13 Documentary Evidence and Real Evidence
Prescribed reading
A&B Chapter 7
A&B Chapter 8
Introduction
At common law before a document can be admitted into evidence (ie be tendered as an
exhibit) or the terms of the document be referred to in any way there are two rules:
1. In general the original document must be produced and tendered BUT there are
several exceptions to this rule.
2. It must be shown that the document is duly executed or adopted or otherwise
connected with a relevant person.
Naturally the usual considerations also apply – is the document relevant to the
proceedings and is it subject to any of the exclusionary rules?

The requirement that the original document be produced.
Butera v DPP(Vic) (1987) 164 CLR 180 at 194
What is a document?
Mortimer and McNicol refer to Brown and note that a document involves:
1.
2.
3.
4.
Some physical thing or medium,
on or in which data are
more or less permanently recorded
in such a manner that the data can subsequently be retrieved (with the proper
equipment)
What is an original document?
This is a matter of common sense BUT there are some special cases.
Exceptions to the rule regarding an original document
Common law
1. Notice to produce
Cross
A notice to produce informs the party on whom it is served that he is required to produce
the documents specified herein at trial to which the notice relates.
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Unit Outline
The notice does not compel production of the documens in question but the fact it has
been served provides a foundation for the reception of secondary evidence.
If a party wishes to compel his opponent to produce documents the proper course is for
him to serve the opponent with a subpoena and this will be adopted when the party not in
a position to adduce satisfactory secondary evidence or when the issue falls on the the
form of the original as when handwriting is material.
Notice to produce is not served in order to give the opponent notice that that the
documents mentioned will be used by the other party, and thus enable the opponent to
prepare counter evidence but so as to exclude the objection that all reasonable steps have
not been taken to produce the original document.
Does this rule apply to chattels?
Hindson v Monahan [1970] VR 84
How does it work?
Ewart v Royds (1954) 72 WN(NSW) 58
What about if you receive a notice to produce, do not hand over the goods and then after
secondary evidence is received you decide to hand it over?
What are the consequences where the a party calls for the document, it is produced and
the other side read it?
Walker v Walker (1937) 57 CLR 630
Dixon J citing Lord Ellenborough said:
You cannot ask for a book of the opposite party and determined upon inspection whether
you decide to use it or not. If you call for it you make it evidence for the other side if the
other side see fit to use it.
NB exception for refreshing memory.
2. Where the pleadings give the opponent fair notice that the document is material to the
proceedings.
3. Where the original document itself is itself a notice served on the opponent.
Sanderson v Nicholson[1906] VLR 371
4 .When the original is in the possession of a person who cannot be compelled to
produce it.
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Bell v David Jones Ltd (1948) 49 SR(NSW) 223 R v Nowaz [1976] 1 WLR 830
5. The original document has been lost or destroyed.
Myers v DPP {1965] AC
6. Where the original cannot be brought into court because of physical impossibility,
public inconvenience or the fact it cannot be removed without damage or illegality.
Owner v Bee Hive Spinning Co Ltd [1914] ! KB 105
Includes contents of public registers, records or documents
Ss89-96 EA(WA) Extension for banking records (even non-public banks)
Statutory exceptions
EA(WA) ss73A-73V
8. If the other party orally admits the contents of the document.
Slatterie v Pooley (1840) 151 ER 579
Permissible secondary evidence
At common law once a party is entitled to lead secondary evidence of the contents of a
document then he or she may lead any kind of secondary evidence even though he or she
is in possession of a superior kind of such evidence.
Eg could give oral evidence of a document even though a photocopy was available.
But note the effect on weight.
R v Collins(1960) 44 CrApp R 170
Photoccopies:
A photocopy is acceptable regardless if whether the original is available or not.
EA(WA) 79C(3)(c)
Proof that a document has been duly executed, adopted or otherwise connected with
a particular person.
Proof of execution of a document means that a party must show that the document has
been signed by the person who the party alleges has signed it.The person may admit
signing the document which dispenses with the need for further proof.
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Unit Outline
If the person does not admit signing the document the signature may be proved by calling
eyewitnesses who saw the document being signed, calling persons who are familiar with
the persons writing and can identify it or call for an expert, R v Mazzone (1985) 43 SASR
330
Use of writing or signature for purposes of comparison
S31 EA(WA)

Where the witness has seen X write and can identify X’s writing

The witness has regularly seen X’s handwriting although they have never seen X
write.

Handwriting experts

The jury themselves.
EA(WA) s 79 Presumptions
Documents created and or retained for the purpose of the public inspecting and using the
document.
Generally they can be proved by secondary evidence.
Copies can be obtained and authenticated – this is regulated by statute.
Real Evidence
You are watching Law and Order. Jack McCoy hops up and starts to speak about
“people’s exhibit A” and waves around a gun in a plastic bag. This is the usual thing we
think about when we start to discuss real evidence. Real evidence refers to objects which
are admitted in evidence. But as we will see real evidence is not limited to guns, knives
etc. (Also just a tip – while its good entertainment don’t take in too much from Law and
Order, The Practice etc. - there are too many too many horror stories out there involving
Australian law students who, during a moot for example, ask to approach the bench!)
Prescribed reading
A&B Chapter 8
What is real evidence?
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Evidence Study Guide Semester 2 2007
Examples:
 Tape recordings
 Charts
 Photographs
 Fingerprints
 DNA profiling
 Tracker dogs
 Views and demonstrations
 Exhibits
An interesting example! Line v Taylor (1862) 176 ER 335
Objects Kozul v R (1987) 147 CLR 221
Tape recording Butera v DPP(Vic) (1987) 164 CLR 180
Video recordings
Photographs Smith v R (1970) 44 ALJR 467Most states have statutory provisions but not
WA – only re photographs 65A R v Ames (1964-5) NSWR 1489
Fingerprints R v Carr [1972] 1 NSWLR 608
DNA results Recall the discussion regarding identification evidence.
Tracker dogs R v McCartney [1976] 1 NZLR 472
Views and Demonstrations

Demonstration - some element of reconstruction of an event which relates to the
facts in issue. Eg machine’s operation

View - a series of demonstrations, or reenactment
Scott v Numurkah Corp (1954) 91 CLR 300
Buckingham v Daily News Ltd [1956] 2 QB 534
R v Alexander [1979] VR 615
SCR(WA) O34
Exhibits
Kozul v R (W&W 519)
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