EVIDENCE END OF SEMESTER EXAM
Semester Two 2004
MARK: 84
Words underlined, except headings, are lecturer’s underlining
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PART ONE – short answers
Question 1
Part (a)
Yes it is relevant to FII – whether D ran a red light. Test for relevance is if ev accepted,
could it rationally affect assessment of probability of existence of FII (s55(1)). This ev is
relevant b/c the test for relevance is a low threshold and admission by D that he did
wrong this meets the test.
Part (b)
W’s ev is inadmissible. There is a previous rep (i.e. out of court statement), it is asserting
a fact (that D ran a red light), D intended to assert that fact and it is adduced to prove that
D ran a red light – meets s59 test.
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Part (c)
Admission – s81 and s82. s59 doesn’t apply to ev of admission (s81). Ev must be given
by person who saw it being made (s82(b)) – satisfied b/c W saw it. Can be construed as
admission (s88). First-hand hearsay. Possibly. Meets s62 – declarant (D) had personal
knowledge. D probably gives ev b/c civil trial and therefore is ‘available’. S64(3) would
apply then b/c made when ‘fresh’ in D’s mind.
Question 2
Part (a)
Yes – this question would come under para (a) of the definition of leading question in
Dictionary Part 1, as it directly or indirectly suggests a particularly answer to the
question.
Part (b)
Yes. Leading questions can be asked in cross-examination: s42(1) unless court disallows
it or directs W not to answer.
Part (c)
Info is relevant in 2 possible ways (1) on propensity reasoning – tendency to be reckless
and therefore reckless on this occasion (s55(1)) (though may be weak basis). And (2) to
W’s credibility as it suggests W is not impartial. [] Other provisions – opinion (s76) –
that D drives recklessly, though probably admissible under s78 (lay opinion). Also
hearsay (s59) – trying to prove drives recklessly and that W help P though possibly not.
First-hand hearsay exception may apply and s60 – to let evidence of hearsay in.
Part (d)
Yes – would need to prove contents of document in accordance with s48. Here seems to
be a breach b/c doc not tendered (on facts) and only given oral ev. Can only give oral ev
if doc is ‘unavailable’ s48(4). If had doc – probably not unavailable. Also not
authentification.
Part (e)
S135(a) – unfair prejudice. Fact finding may assume W is impartial though no direct ev
W has lied in court. It is very likely he did see the admission. Fact finder may not believe
him b/c note provoked irrational response and therefore unfair prej to P. Maybe UP b/c
cannot x-examine Yve? Though note Ordukay v Hicks – says this wouldn’t be UP.
Part(f)
This evidence is only relevant to Ds credibility and therefore inadmissible under s102
provides exception. Where W denies ev (as is the case here) can invoke s106 to rebut his
denial. Would use s106(a) – W is biased or motive for being untruthful. Note Umanski
though limit?
Question 3
2
Part (a)
YES
Part (b)
S79 – expert evidence. K will need to prove that he has ‘specialised knowledge’ based on
training, experience or study. He may have difficulty proving that his opinion is ‘wholly
or partly’ based on this expert knowledge. But main difficulty is explaining to the jury
how this specialised knowledge applies to the facts assumed so as to produce the opinion
(Makita) [] i.e. how his mechanical expertise explains that conclusion the conclusion
that travelling at least at 40kmph.
Question 4
Part (a)
This evidence is relevant to proving the factual substratum, i.e. what Dr Zed based
opinion on.
Part (b)
As this ev is relevant on an original basis (factual substratum), using s60, it can thus also
be used to prove that what P said to Zed was true (testimonial use): Welsh. But only what
P said to Z and not what her friend, Tom said to her, could be used for a testimonial
purpose.
Question 5
Jones v Dunkel submission. A witness is not available where (a). W could be expected to
be called by party – yes. J was in car with D. Should know what occurred. (b) ev of
missing W would elucidate particular matter – yes, what happened, whether light red or
green and (c) W’s absence is unexplained – which is the case here (Payne v Parker).
Thus where party fails to call W whom party would reasonably have been expected to
call submit to TJ that open to find W’s ev would not have helped that party’s case – here
– colour of light.
Question 6
Part (a)
Needs to prove case on balance of probabilities: s140(1)
Part (b)
Yes, should take into account such factors – nature action, nature subject-matter of
proceeding and gravity matters alleged – in deciding whether balance probabilities test
met.
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Part (c)
Balance probs means actual persuasion of FF. Re: circumstantial case P must establish to
FF that the more probable inference is that fact existed (colour of light): Bradshaw v
McEwans. By more probable is meant no more than upon a balance of probabilities such
an inference might reasonably be considered to have some greater degree of likelihood.
Note
PART TWO
Question 1 [8.5/10]
Relevance s55(1)
Test: could ev. rationally affect assessment of probability of existence of FII? Here Z’s
and part of L’s ev is relevant based on propensity reasoning i.e. that D had a tendency to
turn right on a red arrow to enter ANU and thus, it is likely that D did so on this occasion.
S97 – Tendency
For the ev of D’s tendency to be admissible P must give notice to D (s97(1)(a)) and the
ev must have significant probative value (SPV). The test for SPV is a strong degree of
probative force (Zacknic) and the probative value must derive from tendency to prove
person had tendency to act in particular way (Jacara).
SPV?
Connor says must look at regularity and uniformity of action. Here there is ev from Z that
D turned right on a red arrow on probably 3 occasions since 2001 and L said that he had
seen D do it on 19 March. Is 4 times enough? [] The action is not so distinctive as in
Pfennig so as to make once enough. D probably had the opportunity to do so every day
and thus 4 times in 3 years does not seem regularly enough to have SPV. L’s ev that he
turned right (though not into ANU) is probably thus not much help either in showing
SPV.
S98
Could possibly argue that it is beyond coincidence that Z’s and Ls evidence plus the act
in question are not related. [begs the question] Arguably they are substantially and
relevantly similar (s98(2)(a)) and the circumstances in which they occurred are
substantially similar (s98(2)(b)). However, what does it show – possibly the
improbability of no. people not telling truth (WRC) – so unlikely P did not lie and that
thus D did turn on a right light. However still problems with SPV (s98(1)(b)) and must
give notice (s98(1)(a)). Because this is a criminal trial s101 needs to be proved – that
coincidence ev about D that is adduced by P cannot be used against the D unless the
probative value of the evidence substantially outweighs any prejudicial effect it may have
on D (s101(2)). (Will be looked at in a moment).
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L’s ev that D laughing and throwing head back etc.
Relevance
Propensity reasoning – that D had a tendency to drive recklessly and did so on this
occasion.
S97
SPV? Notice? Re: SPV – arguable not enough here – though maybe it could be seen as
serious enough that once is enough to give SPV, but not similar enough to this particular
occasion – no ev of that happening here. In the context of Z’s ev and that D went through
red light – still not similar enough to give SPV for fact that D had a tendency to drive
recklessly (so can’t be argued under s98 either).
Re: s101(2)
Arguably the probative value of tendency ev of D going through red lights into ANU (if
accepted) is not substantially outweighed by the prejudicial effect of the ev. Applying
McHugh J’s test in Pfennig – TJ is to determine if probative value of ev substantially
outweighs the degree of risk to D of an unfair trial. Here not the case. But re: ev that
driving recklessly etc., if found to be tendency ev, probably would meet the test and thus
should be excluded.
If not, then D may argue that should be excluded under s137 unfairly prejudicial as it
may provoke an irrational response from jury.
Opinion ev s76
L’s ev that must have gone through red light, wheels spinning and screeching. This ev
would be excluded under s76 – b/c adduced to prove this occurred. But probably
exception in s78 – (a) what L perceived and (b), necessary to obtain an adequate account
of what he saw.
Identification ev
Also evidence of opinion (s76) – though could get around using s78. Meets definition in
s114 – visual identification ev – ID based on what saw. Here on id. parade – should
exclude ev unless can show not reasonable to hold parade or D refused to take part
(s114(2)). Need more facts.
If ev admitted, need to give direction under s116 – cautioning jury and reasons for
caution.
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Question 2 [4.5/6]
Relevance?
S55(2)(a) – relevant to credibility. Ev that Z made story up, had a grudge against D and
thought he was a thief probably shows that D lacks veracity or should not be believed on
oath (Wren). Shows bias and not impartial.
B/c only relevant to cred, s102 applies to exclude ev but b/c this is x-exam, s103 applies.
On ruling whether the question may be asked, the TJ must assume W will answer
question in a way least favourable to their credibility (Hooper). The ev must also have
substantial probative value (SPV).
Grudge against D
Could not rationally affect assessment of credit of W. It shows that she is not an impartial
W (Mahoney J in Hooper). Thus SPV.
Spray paint – ‘D is a thief’
This has SPV because it also shows that she is not impartial (Hooper). Furthermore, as
she did this 3 weeks ago – (s103(2)(b)). This also indicates ev has SPV. Vandalism –
maybe Glass and Samuel J – responsibilities as a citizen.
Hearsay?
‘D is a thief’ – no, not adduced to prove he is a thief, just what Z though.
Opinion – s76
Her opinion that D’s a thief – though s76 doesn’t apply b/c not adduced to prove he is a
thief.
Question 3 [8.5/10]
First question
Relevance?
S55(2)(a)  credibility – seems to be restoring credibility. Because only relevant to cred,
s102 applies but there may be an exception in s108 because this is re-examination.
S108(1) seems relevant as s102 doesn’t apply to ev adduced in x-exam. Under s39(a) a W
may be questioned about matters arising out of ev given by W in x-exam and she was
questioned about reporting 3 occasions to police – this seems to be able to give a
complete account of storey (R v Lavery).
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Hearsay?
‘Another student told me’ – s59 not applicable as not adduced to prove what other
student told her but to prove that is what Z thought.
Opinion – ‘I thought…’ – not adduced to prove that should have done something about it.
Therefore s76 not applicable.
2nd Question
Leading question [how?] – this is not allowed in re-exam (s37(1)) and doesn’t seem to
fall into one of exceptions in s37(1).
Relevance? S55
It is hard to see how relevant, except possibly to tendency that D had to be reckless –
though how relevant as to whether turned on red light? Not really relevant to credibility –
so s108 can’t help get admitted. Maybe should admit provisionally (s57).
Possibly issue of splitting case – should have been adduced in examination in chief.
Note
Relevance?
This note is relevant to credibility (s55(2)(a)) as PCS and also possibly to FII – whether
D had tendency to turn on red lights. Though note – 3 months after – long time – low
probative value. If only relevant to credibility, s102 applies but exception in s108(3)(b) –
can adduce ev of PCS if suggested that fabricated evidence – case here. Need leave
though (look at s192). (This would be an original use – PCS). However according to
Leung, [] can only be relevant to credibility and not re: proof of facts – limit on s60.
Hearsay
Adduced probably  FII [but this is rextn…what of 39?]. If so, is there an exception?
Not first-hand hearsay [] as 2 did not see D drive through red lights and told this by
student. [this is Q about the diary note]. If Z did see these things the ev was not ‘fresh’
according to Graham (hours or days) b/c 3 months later and therefore s64(3) [only in
civil case] would not apply. As mentioned above Leung prevents use of s60 in this case.
Thus evidential use is only for credibility, not for FII – that D had gone through red lights
on 3 occasions.
Exclude under s135(a) – made long time after – low prob value and unfairly prejudicial.
Question 4 [9/10] excellent!
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Part (a)
Relevance?
S55(1). S’s evidence is relevant to FII – whether D went through a red light.
Problems – leading question
First question is a leading question according to ALRC under defn. Part (a). ‘Fast’
suggests that was speeding/going too quickly.
Opinion
S’s opinion that going about 40kmph would be excluded under s76 as it is adduced to
prove truth of this opinion. But there may be an exception in s78 – lay opinion. It is based
on what S saw (s78(a)) and is necessary to obtain an adequate account (s78(b)).
Failure to comply w/ s32
The Crown used a document to revive S’s memory about the colour of the lights however
it failed to comply with s32 – which governs such matters. A W must not in course of
giving ev, use a doc to revive memory about a fact or opinion unless the court gives leave
(s32(1)). Here no leave has been given. Ev should be excluded. If the court were to
consider on voir dire whether to give leave would look at whether could recall fact
adequately without using doc. (s32(2)(a)) – it seems not in this case. Also should consider
whether the doc was found to be accurate by S – here it seems she did not check what
was written by SV which make sit less likely court would grant leave. Also consider if
recorded when events fresh in S’s mind (s32(2)(b)(ii). Here events were not fresh b/c 3
months since saw event (according to Graham – should be hours or days). So quite
unlikely court would have granted leave, though they have discretion to do so. Also
consider factors in s192.
Note: document not admitted into ev through this means, so no need to consider s48.
Part (b) – Lee relevant? [not if s69 the vehicle]
P would want to adduce the note as ev of what S saw (i.e. hearsay use) however the
problem is that there is a previous rep within a previous rep. If [circled] only adduced to
prove that S said these words – this is not a hearsay use. If [circled] there was a hearsay
use, it seems that s69 would provide an exception to all the info of what S said to be
adduced to prove that.
Business Records Exception – s69
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The note written by SV [circled] forms part of records of the business of ANU Grounds
and Facilities Office (s69(1)(a)(i)) (Note: question whether it is a business though
probably comes under ‘bus’ in Dict Pt 2. – References to businesses). The note contains
[write? Or recorded?] a previous rep (s69(1)(b)). The hearsay doesn’t apply if the rep
was made [circled] by a person who had or might reasonably be supposed to have had
personal knowledge of the asserted fact (s69(2)(a)) [(a) circled].
S can be seen to have personal knowledge of the event, according to s69(5). B/c the note
does say ‘S told me….’, S can be considered the maker of the previous rep and she had
person knowledge and so s69(2)(a) is [] satisfied (according to Bayne p413, example
3).
S69(3) does not seem to apply. The first-hand hearsay rules are inapplicable b/c S did not
make the document (Caterpillar). S50 – voluminous docs exception might apply.
Note relevance of s48 here – proof and authenticity.
Question 5 [5/6]
First dot point
Nothing wrong with first 2 sentences. However last 2 are probably a bit incorrect. The
burden of proof in a criminal trial lies with the prosecution. The prosecution bears the
legal and evidential burdens re: the elements of the offence and must prove their case
beyond reasonable doubt: (s14(1)). Where there is a circumstantial case, as is probably
the case here, judge must be satisfied that the facts were such as to be inconsistent with
any other rational conclusion other than that prisoner was the guilty person: Hodge. The
test is not met where an inference that an ultimate fact does not exist is a reasonable
possibility.
Second dot point
Here it seems that judge is taking judicial notice of a number of things. Though note
ALRC thinks distinction between judicial notice and common knowledge is illusory.
Nevertheless it is a necessary distinction for purposes of Act, because if the judge does
take judicial notice of things he must comply with s144(4), which requires that an
element of natural justice be accorded to a party before notice is taken – must give
opportunity to make submissions etc. TJ has probably taken judicial notice of fact that
lecture on that day commenced at 11:00am, the layout of the campus, when D would
have arrived, that lectures begin at 5 past (these probably fall within s144(1)(a) or (b)).
So has he given notice under s144(4).
The direction ‘you could…infer’ is directing jury to use common sense – this is fine.
Third dot point
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There is probably no problem here b/c of the presumption of accuracy of instruments. []
Can take judicial notice of this. [] That traffic lights will work properly is probably
presumed – though if not considered within the ‘notorious’ class – ev could be adduced
from expert to establish traffic lights worked properly: Porter v Kolodzeij.
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