TABLE OF CONTENTS
Lecture 1 .....................................................................................................................................................................................................................2
Sources Of The Law Of Evidence ............................................................................................................................................................2
Nature Of Evidence.......................................................................................................................................................................................2
Functions Of The Judge, Counsel & Jury ..............................................................................................................................................2
Lecture 2 .....................................................................................................................................................................................................................3
Burden & Standard Of Proof ....................................................................................................................................................................3
Facts In Issue...................................................................................................................................................................................................3
Admissibility ...................................................................................................................................................................................................3
Weight ................................................................................................................................................................................................................4
Judicial Discretion .........................................................................................................................................................................................4
Voir Dire ............................................................................................................................................................................................................5
Lecture 3 .....................................................................................................................................................................................................................7
Method Of Proof & Means Of Proof – Definitions ...........................................................................................................................7
Testimony .........................................................................................................................................................................................................7
Competence & Compellability .................................................................................................................................................................7
Competence & Compellability Of Other Persons ............................................................................................................................8
Special Witnesses ..........................................................................................................................................................................................9
Indigenous People & Non-English Speaking Backgrounds ..................................................................................................... 10
Complainants In Sexual Offences ........................................................................................................................................................ 11
Lecture 4 .................................................................................................................................................................................................................. 13
Order Of Proceedings: .............................................................................................................................................................................. 13
Refreshment Of Memory From Documents Whilst In Court .................................................................................................. 13
Prior Consistent Statements ................................................................................................................................................................. 13
Hostile Witnesses – Examination-In-Chief Only! ......................................................................................................................... 14
Lecture 5 .................................................................................................................................................................................................................. 15
Cross-Examination .................................................................................................................................................................................... 15
Prior Inconsistent Statements – In Relation To Cross-Examination ................................................................................... 15
The Rule In Browne V Dunn .................................................................................................................................................................. 16
The Finality Rule ........................................................................................................................................................................................ 16
Lecture 6 .................................................................................................................................................................................................................. 17
Rule In Walker V Walker ........................................................................................................................................................................ 17
Re-Examination .......................................................................................................................................................................................... 17
Rebuttal .......................................................................................................................................................................................................... 17
Lecture 8 .................................................................................................................................................................................................................. 19
Documentary Evidence ........................................................................................................................................................................... 19
Real Evidence ............................................................................................................................................................................................... 20
Hearsay & Exceptions (Lect 9-10) ................................................................................................................................................................ 21
Hearsay ........................................................................................................................................................................................................... 21
Hearsay Exceptions ................................................................................................................................................................................... 21
1. Inherently Reliable Evidence Exception ..................................................................................................................................... 21
2. Res Gestae................................................................................................................................................................................................. 22
3. Statutory Exceptions............................................................................................................................................................................ 23
4. Admissions & Confessions ................................................................................................................................................................ 24
Circumstantial Evidence (Lect 12) ............................................................................................................................................................... 29
Peacock Direction ...................................................................................................................................................................................... 29
Shepherd Direction ................................................................................................................................................................................... 29
Propensity And Similar Fact Evidence (Sfe) [Copycat Killers] .............................................................................................. 29
Motive ............................................................................................................................................................................................................. 30
Opportunity .................................................................................................................................................................................................. 30
Habit ................................................................................................................................................................................................................ 30
Conduct........................................................................................................................................................................................................... 30
Character ....................................................................................................................................................................................................... 30
Opinion Evidence (Lect 13) ............................................................................................................................................................................. 33
General Rule: ................................................................................................................................................................................................ 33
Non-Expert Evidence: .............................................................................................................................................................................. 33
Expert Evidence:......................................................................................................................................................................................... 33
Page 1
LECTURE 1
Notes are intended to be
printed 2 pages to a page
SOURCES OF THE LAW OF EVIDENCE
Evidence Act 1977 (Qld)

Where there are gaps in the QEA, the common law will apply

If in state court for eg, an offence under the Cth Crimes Act – will be a state court
exercising federal jurisdiction and the QEA applies (s 79 Judiciary Act 1903 (Cth)
Evidence Act 1995 (Cth) – applies in the High Court, Federal Court and Family Court

Where there are gaps in the CEA, the QEA will apply (s 79 Judiciary Act 1903
(Cth)), if still gaps, common law will apply

Note also: Criminal Code 1899 (Qld) and Police Powers and Responsibilities Act 2000
(Qld)

If QCAT – not bound by rules of evidence but may try to apply QEA, then common law

If AAT – not bound by rules of evidence but may try to apply CEA, then QEA then
common law
NATURE OF EVIDENCE

Evidence is the material offered to court during a trial for the purpose of enabling the
finder of fact to reach a decision on the issues in dispute

There are three main elements:


Prescriptive rules – the kind of evidence accepted; the amount of evidence
required; the manner in which evidence must be presented; the persons who
may/must give evidence

Ethical principles – duty owed by counsel to court overrides duty owed to the
client (Giannarelli); counsel must not mislead the court, accuse others falsely or
withhold information

Forensic principles – apply the rules
Substantive law: elements of the offence
FUNCTIONS OF THE JUDGE, COUNSEL & JURY

Judge: to direct on points of law and to ensure the jury is not misled by inadmissible
evidence (s 620 CC)


The judge controls what facts the jury will hear, based on the laws of evidence
Apostilides:

The judge may invite the prosecutor to reconsider the decision not to call a
witness

A judge can only call witnesses in exceptional circumstances and the prosecutor’s
refusal to call is not sufficient (Apostilides; Demich)
Page 2
LECTURE 2
BURDEN & STANDARD OF PROOF

Criminal cases: The Crown has the legal and evidential burden to prove [offence]
BRD (Woolmington). The [accused] must raise any defences on the balance of
probabilities, which the Crown must negative BRD.



Legal Burden: to prove the main facts in issue (elements of offence)

Criminal case: on the prosecution [burden of proof] to establish the offence
beyond reasonable doubt [standard of proof], accused to raise defences on the
balance of probabilities, then prosecution to negative them BRD

Civil case: on the plaintiff and defendant to prove on BOP
Evidential Burden: obligation to call / tender evidence


Exceptions: The accused bears the legal burden on:
 The defence of insanity (s 26 CC; Porter)
 The defence of diminished responsibility (s 304A CC)
 The defence of lawful possession of a dangerous drug (s 124 Drugs
Misuse Act 1986 (Qld))
Defacto evidential burden: on the accused to raise evidence of a defence /
excuse on BOP, then prosecution to negative BRD
Standard of Proof:

No case to answer: Whether there is no case to answer is a question of law – if
prosecution has failed to prove an element (criminal), or evidence does not
support the plaintiff’s case (civil)
FACTS IN ISSUE

Main facts in issue: the elements of the offence, as require d by the substantive law

Collateral facts: proof of these facts is required by the law of evidence, not the
substantive law:
 Facts affecting credibility
 Facts affecting the admissibility of evidence
 To determine the way judicial discretion will be exercised
ADMISSIBILITY
Evidence is capable of being received by a court if it is:

Relevant to a main or collateral fact in issue:
 If a piece of evidence is not relevant, it is inadmissible (Note: s 56 CEA)
 Whether or not evidence is relevant is a question of law for the judge, it is NOT
exercising judicial discretion

Not breaching an exclusionary rule (which is a question of law – NOT exercising
judicial discretion):
 Rule whereby certain requirements of process would day that a piece of evidence
is inadmissible (eg. hearsay)
Page 3
WEIGHT
Jury is to decide the persuasive value of the evidence, with regard to all the circumstances
(s 102 QEA).

Should the evidence be accepted / believed – depends on the credibility of the source

If yes, how persuasive / probative (how far does it go to prove) is the evidence (how
much weight should it be given)?
JUDICIAL DISCRETION
The discretion to exclude otherwise admissible evidence. There is no discretion to
include otherwise inadmissible evidence.
Fairness Discretion (Hasler): applies only in criminal cases

Judge balances prejudicial effect of the evidence with the probative value:
Is the evidence of
slight probative value?
Yes
Is the admission of the evidence
substantially prejudicial?
Note also:
No, it is of medium or high
probative value
No, it has no probative
value
Admit the evidence
Exclude the evidence
Yes, exclude the evidence
 S 135 CEA: general discretion
to exclude where probative
value outweighed by unfair
prejudice
 S 136 CEA: court may limit
use of evidence where it is
unfairly prejudicial
 S 138: in criminal trials, court
must refuse to admit
evidence where probative
value outweighed by unfair
evidence
 IE: CEA enables these
discretions to be applied in a
civil case under that Act.
No, admit the evidence
Public Policy Discretion (Bunning v Cross): applies only in criminal cases

Judge balances the desirability of bringing wrongdoers to conviction with not condoning
improper behaviour by those who enforce the law (eg. police officers)

Usually in scenarios of illegally / inappropriately obtained evidence

5 Indicia: not exhaustive (includes but not limited to)
 Seriousness (nature) of offence
 Deliberate/reckless/mistaken disregard for the law
 Ease of complying with the law to procure evidence (eg. deliberate cutting
corners)
 Cogency (strength) of evidence – vital, perishable or evanescent (temporary)
 Purpose of the legislation (eg. restricting police)
Also note s 138 CEA (for criminal and civil): desirability of admitting the
evidence must outweigh the desirability of excluding it

R v Day & Anor: court exercised discretion to exclude evidence obtained from an
unlawful search where:
 No emergency;
 It was easy to obtain a valid search warrant
 There was a reckless disregard for the law.
Page 4
VOIR DIRE

Admissibility, relevance and exercise of discretion are matters of law for the judge that
may have to be decided in a vior dire.

The court will hear:

Legal submissions in relation to admissibility / exercise of discretion

Evidence about collateral facts – bias, motives etc

Mini trial within trial with the jury absent; an inquiry into whether facts exist that inform
the decision to be made on such issues.

Burden of proof is on the party seeking admissibility of evidence of exercise of
discretion (on BOP)
Note: s 189 CEA – preliminary questions done in the absence of the jury
Page 5
Page 6
LECTURE 3
METHOD OF PROOF & MEANS OF PROOF – DEFINITIONS
Direct evidence: proves a fact in issue; contrasted with circumstantial evidence which goes
to prove facts in issue by inference.
Means of proof:

Documentary: very powerful, eg. if case about a contract, can show actual contract

Object: eg. murder with a gun, want to see the gun
TESTIMONY
Original: what one’s senses tell them eg. “I heard …”; “I saw …” compared with hearsay
The best is that sworn under oath.

Religious beliefs: As [witness] objects on the grounds of having contrary beliefs, they
can make an affirmation, which has the same weight as sworn evidence (s 17 Oaths
Act 1867 (Qld) (“OA”)).

Note: s 21 CEA and; person can take oath even if no religious belief (s 24 CEA)
Interpreters:

Court may order an interpreter for an accused or witness (s 131A QEA)

If used, the interpreter is bound in the manner determined by the judge – must be
truthful etc (s 35 OA)

CEA: courts can use interpreter unless witness understands English sufficiently (s 30
CEA)
COMPETENCE & COMPELLABILITY
The general rule is that every witness is competent and compellable.

Competence is a person’s legal capacity to testify

Compellability is a person’s legal obligation to testify:

A compellable witness cannot refuse to answer questions, except on some
grounds:
-
Legal professional privilege
-
There is no longer a marital privilege in Queensland (s 8(2), (3) QEA)

CEA: in criminal proceedings: a spouse may object to questioning if it
would harm the relationship and that outweighs desirability of giving
evidence, must be a present relationship (s 18 CEA)
-
Public interest privilege (eg. national security)
-
Self-incrimination: there is a right to silence
-
There is no privilege for counsellors, social workers, journalists or clergyman
– they are all competent and compellable (s 9 QEA).
Page 7
COMPETENCE & COMPELLABILITY OF OTHER PERSONS
Accused:

As a witness for the Crown, the accused is incompetent at common law
 Also, in s 17(2) CEA.
 Co-accuseds cannot be called by the Crown to give evidence against each other.

As a witness for the Defence, accused is competent but not compellable (s 8(1) QEA).
 (ss 12, 17(3) CEA)

As a witness for co-accused, accused is competent but not compellable (s 8(1) QEA).
 (ss 12, 17(3) CEA)

As a witness against co-accused, the accused is incompetent at common law (ie.
cannot be called).
 If Crown wants to use co-accused as their witness against another co-accused,
could enter into a nolle prosequi, separate the trials, and enter into a plea bargain.
- Then, the previous co-accused will be competent and compellable

Where the accused gives evidence against a co-accused in their own defence, the
evidence against the co-accused is admissible.
Spouse of accused:

Criminal: As a witness for the prosecution or defence, the spouse of the accused is
both competent and compellable, and the consent of the accused is not required
(s 8(2), (3) QEA).


CEA: in criminal proceedings: a spouse may object to questioning if it would harm
the relationship and that outweighs desirability of giving evidence, must be a
present relationship (s 18 CEA).
Civil: As a witness for either party, spouses are competent and compellable (s 7 QEA).
Page 8
Note: s 13 CEA: can give evidence if
they understand the obligation to
give truthful evidence.
SPECIAL WITNESSES
Competent if they can give an intelligible account (s 9A(2) QEA).
[Child] can give sworn evidence if [he/she] understands that giving evidence is a serious
matter and that [he/she] has a duty to tell the truth to the court above the ordinary duty to
the truth (s 9B(2) QEA; s 37 OA).

If a problem with the factors, [child] can still give unsworn evidence, and the court must
explain the duties of speaking the truth (s 9B(3) QEA).

As the child is under 12, (or the court is deciding whether a person understands
the matters mentioned in section 9B(2)) expert evidence about the [witness’s]
ability to give evidence can be sought (s 9C QEA).
-

The expert will consider: level of intelligence, including the person's or child's
powers of perception, memory and expression, or another matter relevant to
the person's or child's competence to give evidence, competence to give
evidence on oath, or ability to give reliable evidence (s 9C QEA).
If [child] provides unsworn evidence, or if the evidence is written down as a
deposition, it has the same weight as sworn evidence (s 9D QEA).
Principles for dealing with a child witness (s 9E QEA):
 A child is a child under 16 years
 [Child] must be treated with dignity, respect and compassion
 Measures should be taken to limit the distress or trauma when [child] is giving
evidence
 [Child] should not be intimidated in cross-examination
 The proceeding should be resolved as quickly as possible
Improper Questions (children, Indigenous, complainants in sexual offences):

The court may disallow an improper question in cross. In deciding whether a question
is improper, the court may take into account the mental / intellectual / physical
impairment / that the witness is a child / education / cultural background (re:
Indigenous), relationship to parties in the proceeding, or any other matter (s 21 QEA).

An improper question uses inappropriate language or is misleading, confusing,
annoying, harassing, intimidating, offensive, oppressive or repetitive.
1. Special witnesses (includes children, maybe Indigenous people / complainants in
sexual offence):


As [witness] …
 is a child under 16 years;
 has mental / intellectual / physical impairment likely to result in them being
disadvantaged as a witness; and/or
 is likely to suffer trauma or intimidation;
he/she] is a special witness (s 21A QEA) and the court may (s 21A(2) QEA):
 close the court to the public
 exclude the accused
 allow evidence to be given via video / from another room
 limit questioning
 direct breaks
These measures are not applicable to the extent that the affected child measures cover
the situation (s 21A(1A) QEA).
Page 9
2. Protected witness (s 21L-M) (child, complainant in violent / sexual offence)
(narrower than special):

As [witness] is under 16 years / has impairment of the mind / is the victim in a sexual
offence / is the victim in violent offence [he/she] is a protected witness (s 21M QEA). If
[the accused] represents [himself/herself], [he/she] will not be able to cross-examine
[witness] (s 21N QEA) and Legal Aid will step in to do this (s 21O QEA).
3. Affected child (s 21AA-AZ):

As [child] is under 16, not a defendant and [offence] is a sexual offence / violent
offence and witness has a prescribed relationship with the accused], [he/she] is an
affected child (s 21AC; s 21AD QEA) and:
 Evidence may be provided in a written statement (s 21AF QEA);
 Cross will only be done if the judge requires it and it may be limited. (s 21AG; s
21AH QEA).

Child can be 16 or 17 if they are a special witness also (s 21AD QEA).
Questioning of children (s 421 PPRA):




requires support person to be present for pre-arrest questioning;
child gets to choose support person;
child may speak to support person in private;
if support person unreasonably interferes with police questioning, the police officer may
exclude them.
INDIGENOUS PEOPLE & NON-ENGLISH SPEAKING BACKGROUNDS
As well as “1. Special Witness”, “2. Protected Witness” and “TESTIMONY” (eg may not
take oath) above:
Interpreters:



The court may order the State to provide an interpreter in criminal proceedings (s 131A
QEA)
If used, the interpreter is bound in the manner determined by the judge – must be
truthful etc (s 35 OA)
CEA: courts can use interpreter unless witness understands English sufficiently (s 30
CEA)
Questioning of indigenous people (s 420 PPRA):



Police must inform Legal Aid they have an Indigenous person in custody unless that
person has arranged for their own legal representative or is not disadvantaged.
Indigenous person may speak to a support person in private (Indigenous person can
waive this right)
If support person is unreasonably interfering with questioning, the police can exclude
the support person
Page 10
COMPLAINANTS IN SEXUAL OFFENCES
As well as “1. Special Witness”, “2. Protected Witness” above:


Exception to the prior consistent statement rule:

PCS will be admissible where it establishes previous complaint by the victim of a
sexual assault (s 4A Criminal Law (Sexual Offences) Act 1978 (QLD) (“SO Act”)).

The court may exclude evidence of preliminary complaint if it is unfair to the
defendant.
Rules for evidence about complainant’s sexual history (s 4 SO Act):

Complainant cannot be asked about their sexual history without leave of the
court; (Rule 1 & 2);

The court shall not grant leave unless the evidence sought to be elicited or led
has substantial relevance to the facts (Rule 3);

The complainant’s sexual history must not be regarded as having substantial
relevant only because of any inference it may raise about general disposition
(Rule 4);

The complainant’s sexual history is not a proper matter for cross-examination as
to credit unless the court considers it to be (Rule 5);

Application for leave must be made in the absence of the jury and in the absence
of the complainant if the defendant insists (Rule 6).
Page 11
Page 12
LECTURE 4
ORDER OF PROCEEDINGS:

Party carrying legal burden of proof (Crown / Plaintiff) opens case
 Counsel witness: Examination-in-chief  Cross examination  Re-examination
 Generally no leading questions in EIC (unless formalities, matters not in dispute)

Counsel closes case

If opposing party chooses to go into evidence, counsel opens case, then same
procedure as above

Counsel for Crown may in exceptional circumstances call further rebuttable evidence
REFRESHMENT OF MEMORY FROM DOCUMENTS WHILST IN COURT
A witness can refresh their memory from a document whilst in court where:

It was made by or verified by the witness & they are satisfied it is substantially
accurate;

It was made at a time sufficiently contemporaneous with the event (ie. when fresh
in mind) (this is a question of fact for the judge); and

The original is produced to the court.

Where the document genuinely revives the memory, evidence may be given without
reference to the document.

Where document does NOT revive the memory, the document must be produced to the
court unless no objections from the other side (Alexander and Taylor)
 A copy has the same effect as an original document (s 116 QEA) .
 The witness does not have to exhaust their memory before refreshment from doc.

The parts of the document used to refresh memory can be cross-examined upon
(Walker v Walker; McGregor)

The document does not become evidence but the testimony does.
PRIOR CONSISTENT STATEMENTS
General rule: “Self-serving” prior consistent statements cannot be used.
Exceptions: PS will be admissible where:
 It establishes previous complaint by the victim of a sexual assault (s 4A Criminal Law
(Sexual Offences) Act 1978 (QLD)).
 Supports correct identification of a person.
 There is a statutory exception
 Res gestae
 It rebuts allegations of recent invention (ie. rebutting allegation that the witness has just
made up the story on the stand).
 To allow PCS, it must be shown that the witness has been impugned by
suggestion of recent invitation and that the PCS rebuts this (Nominal Defendant v
Clements).
 Where shown, statement is taken to be the truth of its contents (s 101(1)(b) QEA).
Page 13
HOSTILE WITNESSES – EXAMINATION-IN-CHIEF ONLY!
Unfavourable witness: can’t cross-examine own witness / ask them leading questions /
impeach their credit just because not giving you the answers you want (s 17(1) QEA).
Hostile witness: a witness not telling the truth / unwilling to tell the truth – not just not giving
you the answers you want but actually withholding information or lying. A hostile witness
can be cross-examined.
Answer:
Counsel cannot cross-examine their own witness or discredit them simply because they do
not provide the answers wanted (s 17 QEA).
However, there is an exception when a witness is hostile. The test is whether they are
“unwilling to tell the truth for the advancement of justice” or “withholding material evidence”
(McLelland v Bower; Hayden and Slattery). The standard is to show hostility “affirmatively”
(McLelland).
Counsel can demonstrate hostility by way of a prior inconsistent statement (PIS), and/or a
witness’s demeanour, conduct in the witness box, choice of language and responses to
non-leading questions (Hunter; Mullins). Here … [apply]
Hostility is an objective question of fact for the judge, who has discretion to declare hostility
but this can be set aside on appeal.
[Skip if no PIS – go to conclusion]
If a PIS is the sole basis for seeking a declaration of hostility, the court should hold a voir
dire, as a PIS is not conclusive of hostility (s 17(1) QEA; Hadlow). The witness must be
given the opportunity to explain the PIS (s 17(2) QEA) or this could be grounds for an
appeal.
There are three possible scenarios:
1. [Witness] admits making the PIS and that it is true. The PIS goes to credit only and
is not proved under s 17 QEA.
2. [Witness] admits making the PIS but denies its truth. The PIS is proved by virtue of
s 17 QEA, and is taken to be the truth of its contents (s 101(1) QEA; Lawrie;
Mursic). The weight attached to the statement determined by the jury (s 102 QEA).
3. [Witness] denies making the PIS. That the PIS was made can be proved by virtue of
s 17 through another witness and is taken to be the truth of its contents (s 101(1)
QEA). The weight attached to the statement is determined by the jury (s 102 QEA).
Conclusion:
If [witness] is declared hostile, counsel will be permitted to cross-examine them, although
this will still be part of the examination-in-chief (Franicevic).
Page 14
LECTURE 5
CROSS-EXAMINATION

Cross-examination of a witness in relation to previous convictions is allowed (s 16
QEA) unless the witness is the accused.

The credibility of a witness can be attacked, subject to limitations:


The court can disallow questions as to credit where the truth of the answer would
not materially impair the witness’s reliability (s 20 QEA).

The court may disallow a question if it is improper (confusing, harassing,
offensive, intimidating etc) with regard to impairment or any other matter including
education, cultural background, relationship to parties in the proceeding, age etc
(s 21 QEA).
Note: Without leave of the court, cross-examination of the complainant in a sexual
matter as to their sexual activities is not permitted (s 4 Criminal Law (Sexual Offences)
Act 1978 (Qld))
PRIOR INCONSISTENT
EXAMINATION
STATEMENTS
–
IN
RELATION
TO
CROSS-
Section 18 QEA:
Here there is a prior written / oral statement made by [witness] that is inconsistent with
their present testimony. It is/isn’t relative to the subject matter of the proceeding
because…
The circumstances of the PIS must be mentioned to [witness] in sufficient detail to enable
them to identify the statement and occasion. [Witness] must be given the opportunity to
explain the PIS:
1. If [Witness] admits to having made the PIS there is no need for further proof.
2. If [Witness] does not admit to having made the PIS, counsel must prove it (Mursic;
Engebretson v Bartlett). When counsel asks [witness] directly whether they made the
PIS, there are 3 possible scenarios:

[Witness] admits making the PIS and that it is true. The PIS goes to credit only
and is not proved under s 18 QEA.

[Witness] admits making the PIS but denies its truth. The PIS is proved by virtue
of s 18 QEA, and is taken to be the truth of its contents (s 101(1) QEA; Lawrie;
Mursic). The weight attached to the statement is determined by the jury (s 102
QEA).

[Witness] denies making the PIS. That the PIS was made can be proved by virtue
of s 18 through another witness and is taken to be the truth of its contents (s
101(1) QEA). The weight attached to the statement is determined by the jury (s
102 QEA).
Page 15
Section 19 QEA [prior WRITTEN statements]:
Here there is a prior written statement. The statement is / is not relative to the subject
matter of the proceeding because … and the [Witness] was / was not the author. A PIS
may be proved, but first, the sections of the document intended to contradict [witness]
must be brought to [his/her] attention. Counsel is not required to allow the witness the
opportunity to explain the inconsistencies (Savanoff v Re-Car Pty Ltd).
Provided this is done, the PIS will be proven by virtue of s 19 QEA and will be taken to be
the truth of its contents (s 101(1) QEA). The weight attached to the statement will be
determined by the jury (s 102 QEA).
Note:

The court can compel counsel to produce the document (s 19(2) QEA).

If the written statement falls short of any s 19 requirement, it may still be admissible,
but will go to credit only.

NOTE: may not be able to use the statement at all if doesn’t relate to a main fact
in issue because of the finality rule!
THE RULE IN BROWNE V DUNN

Rule: If counsel plans to contradict the other side’s witness’ examination in chief, they
must put the contradictory statement to the witness to give them the opportunity to
respond (Browne v Dunn)

Failure to do so means counsel has accepted the witness’ examination in chief

Applies in criminal and civil cases

Breach: The rule is breached by counsel not cross-examining the witness at all, or but
not putting those parts of the case which contradict the witness to the witness.

Consequences of Breach: counsel will not be allowed to call that contradictory
evidence, the other side will be able to call rebuttal evidence, abortion of trial etc
(Allied Pastoral Holdings v FCT).
THE FINALITY RULE

Rule: The first answer the witness gives to a question which deals solely
with credit it the final answer (Piddington).



The cross-examiner will not be allowed to pursue the matter (eg. by
calling other witnesses to rebut what the present witness is saying.
Evidence cannot be adduced to rebut the answer.
Collateral facts: the
facts which relate to
the credibility of a
witness, which affect
admissibility
of
evidence and which
affect the exercise of
judicial discretion.
Also: just because
it’s not main facts in
issue
does
not
MAKE it collateral!!
Exceptions (which apply in criminal and civil cases):

PIS: because they can be evidence of the truth of their contents (so not
necessarily just collateral)

Criminal history: If the witness denies details of their criminal history, counsel can
adduce evidence in rebuttal (ss 16, 53, 54 QEA).

Bias: the reasonable possibility that a witness is biased in favour of the party
calling / against the other party (Umanski; Nicholls).

Notorious liars

Page 16
Physical / mental incapacity
LECTURE 6
RULE IN WALKER V WALKER

Rule: If a cross-examiner calls for and reads a document of the other side, they must
tender it as part of their evidence, even if some parts are unfavourable.

Exception: when the document is used by the other side to refresh memory
(McGregor).
-
Eg. Where police officer uses notebook to refresh memory, only bits used to
refresh can be cross-examined on, not the entire notebook.
RE-EXAMINATION

Essentially same rules as EIC + restricted to matters discussed in cross-examination
REBUTTAL

Trying to bring evidence in after case has close

Rare, only permitted in exceptional circumstances (Shaw)

Leave may be given by the court where:

Breach of Browne v Dunn

To prove PIS

Formally prove a matter than cannot be denied

Defendant has burden of proof (eg. insanity defence)

Crown could not foresee issue
Page 17
Page 18
LECTURE 8
DOCUMENTARY EVIDENCE
[Document / tape / video etc] is a document (Sch 3 QEA)
Content must be relevant & not breach any exclusionary rules (eg. hearsay)

Original / Best Evidence Rule: that the original document would always be the best
evidence (to ensure reliability and accuracy.
 The original must be produced
 A secondary source is admissible if an exception applies
 Authentication is required (was executed, people saw person sign it etc)
 Applies where the contents of the document are being relied upon
- Ie. Does not apply where reliance is placed on the document only for
appearance or identification purposes (Com for Railways v Young)
Exceptions to the Best Evidence Rule:
 Must make reasonable attempts to secure the original
 May prove by secondary evidence (copies, oral testimony of content)
 Where unreasonable delay, expense or inconvenience, the rules of evidence can
be dispensed with (r 394 UCPR)
 Opponent’s failure to produce after notice to produce has been served
 Lost or destroyed document (must establish on a voir dire that there was a bona
fide search and not a fraudulent destruction)
 Third party lawfully refuses to produce documents (eg. privileged document)
 Production of original is impossible
 Admission by party as to contents
 Public documents (ss 51, 55, 74 QEA)
 However, these exceptions are unnecessary where there’s a photocopy, as it is
as good as an original (s 116 QEA)
Note CEA:
 S 51: abolishes original evidence rule.
 S 48: copies can be used to prove the contents of document, if the original cannot
be found after a search, has been destroyed, or it is impractical to obtain it.

Proof of the Execution of Private Documents:
 Adoption: written / made by the person & acknowledges as correct by signing etc.
 Execution: someone is familiar with their signature and can say that the person
executed it (eg. work colleague, spouse etc)

Proof of Handwriting:
 by admission;
 opinion evidence;
 eye witness;
 comparison proved to the satisfaction of the judge (s 59 QEA)

Proof of Attestation: extrinsic ev allowed where attestation required (ss 60, 61 QEA)

Wills: (Succession Act and r 604 UCPR): prove execution of will by calling one attesting
witness or another person present at time of execution; if witnesses are dead/mentally
impaired, need proof of one witnesses’ handwriting; copy may be proved if original is lost
Page 19

Parol Evidence Rule: extrinsic evidence can only be used if some ambiguous thing in
the document that needs to be interpreted (Codelfa)
REAL EVIDENCE

Real evidence is all evidence other than oral testimony and documents (note there is
an overlap between “document” in s 3 QEA and “real evidence”).
Views and Demonstrations:

QEA:
View: is a passive observation, going along to have a look at eg. a crime scene –
purpose is to assist the court to understand the evidence
 It is not evidence and does not require the parties’ consent
Demonstration / Reconstruction / Experiment: is considered evidence
 Requires the parties’ consent
 May begin as a view but turn into a demonstration (Scott v Numurkah Corp)

CEA:
No distinction between view and demonstration – they are both considered evidence
No need for parties’ consent, approval is needed from the court, and parties must be
given the opportunity to be present.
Exhibits:


Where the Crown holds exhibits, defence must be allowed access to conduct tests
(Ekert)
Some limitations apply:
 Tests must not destroy / eliminate exhibit (eg. small quantities of drugs)
 Tests cannot change the nature of or damage the exhibit
Could be combated by an independent person watching the testing
Tape Recordings (sounds):



Can be documentary and real evidence (ie. Is a document (Sch 3 QEA)
The evidence is the sounds on the tape (Butera)
 Transcript is generally not evidence and would not go into the jury room except in
exceptional circumstances
 Butera: was very complex recording, lots of different languages etc, needed to be
translated, the transcript was allowed to go into the jury room – this is an
exception to the rule and the transcript is still not considered evidence, just means
for the jury to understand the evidence
 CEA: transcript allowed into the jury room regardless (s 48 CEA) – not in Qld!
Note: Tape recordings are essentially inadmissible unless the recording is made by
one party to the conversation (s 43 Invasion of Privacy Act) (Note: no obligation to tell
you it’s being recorded)
Photographs and Films (visuals): Is a document (Sch 3 QEA).
Is admissible as evidence of what it depicts (Sitek).
REMEMBER: always judicial discretion to exclude irrespective of everything talked
about, if gained eg. unfairly, could be excluded!
Page 20
HEARSAY & EXCEPTIONS (LECT 9-10)
HEARSAY
1. Is it relevant? If yes, prima facie admissible
2. Is it hearsay? If yes, it will be excluded from going into evidence
3. Does an exception to the hearsay rule apply?
Definition: Hearsay is an out of court statement, tendered to prove the truth of its contents
(Pollitt; Subramaniam; Walton). The rule is that hearsay evidence is inadmissible unless
an exception applies (Ibid).

Note: if something is tendered to show that the conversation was held or to consider
the state of mind of the person making the statement – NOT HEARSAY! It’s only
hearsay if trying to rely on the contents of the statement.




Where the fact of making the assertion is fact in issue (eg. defamation)
- Where defamation, will be original evidence, not hearsay (Subramaniam; Chin)
Ratten: trying to rely on fact victim has called the police = hearsay, as were trying
to rely on proof of its contents
Chin: telephone numbers on VISA application = hearsay
Myers: cylinder block numbers on microfilm = hearsay
Rationale for the rule (Teper):
 Not the best evidence
 Not delivered on oath
 Truthfulness and accuracy of the speaker cannot be tested by cross
 Demeanour of the speaker in testimony is lost
Scope of the hearsay rule: out of court assertions (express/implied/oral/conduct/written)
HEARSAY EXCEPTIONS
1. INHERENTLY RELIABLE EVIDENCE EXCEPTION
Evidence should be admitted where a contemporaneous assertion is made by a party to a
telephone conversation which discloses the identity of the other party (Walton; Pollitt). […
as it is spontaneous and likely to be reliable].



Limited to identification of the caller
Can be implied or express assertion, made during or immediately before or after
conversation
Should be confined to categories of ordinary social and business conversation
Walton:
 Hearsay rule should permit evidence of a contemporaneous statement made by a party
to a telephone conversation which discloses the identity of the other party (Deane J)

Extreme unlikelihood of concoction on the part of the child favoured the admission of
the implied assertion (Mason CJ) – limited to a child
SEE NEXT PAGE – POLLITT 
Page 21
Pollitt:
 Implied assertion of the identity of the other caller made during a telephone call is
admissible because it is spontaneous and likely to be reliable (Mason CJ)

Express assertion of the identity of the other caller made immediately after the
termination of the call is admissible because it is likely to have a high degree of
spontaneity, be free from the possibility of concoction and thus be reliable (Mason CJ).

Exception should be confined to categories of ordinary social and business
conversation where identification unlikely to be fabricated or fictitious (McHugh J)
2. RES GESTAE
There are four main heads of res gestae:
1. Incidents regarded as part of the transaction in issue:

Connected series of events occurred which should be considered as one
transaction (O’Leary)

Eg. hostile and violence conduct explained his mind and was relevant to whether
he was capable of forming the intent for murder (O’Leary)
2. Spontaneous statements made by participants in/observers of an event in issue

Hearsay is admissible where the statement is made in approximate conditions of
involvement and pressure and the possibility of concoction is excluded (Ratten).
 Must not be a narrative of a concluded event (Adelaide Chem v Carlyle)

Not leading
approach!!

Looking more at spontaneity rather than contemporaneity
 Contrast Adelaide Chem v Carlyle (1940): at this time, Aus approach was very
strict – acid was spilt on worker who made statements about why jar broke
minutes after – action against owners for negligence (man was dead), was
hearsay statement.

Held: statement was made too late – a narrative of concluded event =
inadmissible

Vosciano: a hearsay statement is not admissible merely because it is unlikely to
be concocted. It is admissible because of the contemporaneous involvement of
the speaker at the time the statement is made.

Also, Walton and Pollitt (discussed above) – assurance of non-concoction
because of the spontaneity of the statement or the involvement of the maker in
the events of the res gestae.

Warren v Coombes: evidence of a bystander about what she had heard was
admissible because it was contemporaneous with and directly concerned with an
event in issue. It did not matter that she had not seen the accident.

CEA: This exception is incorporated into s 65(2)(b) CEA.
3. Statements made by a person as to his or her contemporaneous physical
sensations / general state of health
 Ramsay v Watson
 Court will look closely, as could be self-serving
 This and 4th head confirmed in CEA by s 66A
4. Statements made by a person as to his or her state or emotion or belief
(confirmed by s 66A CEA)
Page 22
3. STATUTORY EXCEPTIONS
[Note: go through both s 93 AND 93B if going to go through one of them!]

Section 93 QEA: Admissibility of documentary evidence as to facts in issue in
criminal proceedings
Applies to criminal proceedings only



Statement in document is admissible if oral evidence of fact would have been
admissible AND
-
Record made in the course of trade or business (s 93(2) QEA) AND
-
Source has personal knowledge of the matters dealt with in the information
supplied, AND
-
Source is not available
Source is not available if: dead, unfit because of mental condition, out of the State
and not reasonably practicable to secure attendance, cannot with reasonable
diligence be found, or cannot be reasonably supposed to have a recollection of
the information given the time elapsed (s 93(1)(b)(i) to (iv) QEA).
Section 93B QEA: Admissibility of representation in prescribed criminal
proceedings
[Note: Not restricted to identity evidence (like exception above is)]
Applies to prescribed criminal proceedings (violent / sexual offences)


Where a person with personal knowledge of an asserted fact made a
representation about that fact,
-
during or shortly after the asserted fact and in circumstances making it
unlikely to be fabricated (2)(a) OR
-
in circumstances making it highly probable it is reliable (2)(b) OR
-
against the interests of the maker (2)(c)
AND is unavailable to give evidence (dead, or mentally or physically incapable),
the hearsay rule will not apply and the representation is admissible (s 93B QEA).
-
Note: not just “overseas” must be dead or incapable!

Crump: evidence that the deceased had told Mrs. K that husband had beaten
deceased up was inadmissible under s 93B(2)(a) and (b) QEA (it was relevant
that deceased showed no signs of injury).

McGrane: Mrs C contended that Dr killed her, asserted fact was “drugging”,
evidence was admissible.
Page 23

Section 92 QEA: Admissibility of documentary evidence as to facts in issue
Applies to civil cases only

Statement in document is admissible if oral evidence of fact would have been
admissible AND
- Maker has personal knowledge and called as a witness OR
- Record made in course of undertaking and source has personal knowledge
and called as a witness.

Document includes (Sch 3): document in writing, book, map, plan, graph,
drawing, photograph, label, disc, tape, film, negative, visual images, other record.

Statement includes (Sch 3): representation of fact in words or otherwise made by
a person, computer or otherwise.

Undertaking includes (Sch 3): public administration, business, profession, trade,
not for profit, by Crown, statutory body or person, in or outside Qld

Maker does not need to be called if dead, unfit because of mental condition, out
of State and not reasonably practicable to secure attendance, cannot with
reasonable diligence be found, undue delay / expense would be incurred (s
92(2)(a)-(f) QEA).

Statement is made in a document if it is written, dictated, recorded with the
person’s knowledge, and recognised as the person’s statement by their signature
or initialling (s 92(4) QEA)
Page 24
4. ADMISSIONS & CONFESSIONS
Admissions and confessions are out of court statements tendered to prove the truth of
their contents. They are an exception to the hearsay rule as they are deemed reliable
because they are adverse to the interests of the maker.


Admission: adverse to maker’s interest, falls short of confession
Confession: actual admission of guilt that goes directly to culpability
Implied Admissions:

Has [accused] unequivocally adopted the statement made by [maker]?



Doolan: when asked if killed her, “you can think what you like” = not an admission
No reply to allegations of liability of guilt: [about allegations by persons NOT in
authority]

When questioned by police = right to silence; when allegation put by a person not
in authority, the law expects some denial (Thatcher v Charles)

Silence as a response may be considered an admission – up to the jury to decide

Thatcher v Charles: may need to consider the circumstances: def was upset and
would probably not want to argue with mother (she’d said “you’ve killed my child!”)

Parkes: The judge was entitied to instruct the jury that the accused’s reaction to
the accusation, including his silence, was something they could take into account
(for more info see case summaries)

Hall: as a general rule, a person’s silence alone cannot give rise to an inference
that he accepts the truth of the accusation made against him (for more info see
case summaries).

Salahattin: An allegation is not admissible against an accused unless the
circumstances are such as to leave it open to the jury to conclude that the
accused has, by his silence, conduct or demeanour, substantially admitted the
truth of the whole / part of the allegation.
The right to silence: [about allegations by persons in authority – police]

Exercise of right to silence cannot of itself amount to an admission or reflect a
guilty conscience (Petty)

A person suspected of having committed a crime is not obliged to answer
questions by police or persons in authority (Petty)

Once you have started talking to a police officer, there is a strong inference that
the right to silence has been waived.

If the accused does not advance an explanation at the first opportunity, the jury
may disbelieve the explanation if the accused advances it later (Petty)
Page 25


Failure to testify: [trial where accused doesn’t give evidence]

The judge should direct the jury that there is a presumption of innocence, the jury
should NOT see a failure to testify as an admission of guilt (Petty).

Generally, the judge cannot make an adverse common where the accused has
not testified (RPS), nor when the accused fails to call other evidence (eg eye
witness) (Dyers).

However, where the accused is the only one that knows what happened, yet has
not put anything up to go to his innocence, judge may give a “Weissensteiner”
direction; that is the direction that the failure of the accused to give evidence can
be used to infer that evidence from the prosecution witnesses can be more readily
accepted (Surrey).

Weissensteiner direction is limited to cases where:
- Case is circumstantial;
- Accused has failed to give evidence;
- On evidence, the accused is the only one who would know what happened;
- Failure to explain is not helping the jury; and
- The hypothesis of guilty put up by the Crown is ineffectively challenged.

However, there may be other reasons why the accused may choose to be silent –
sick, nervous about testifying, protecting someone else (Azzopardi). In that
situation, there is a rational reason other than guilt as to why the accused has not
given evidence.

Comment on compellability: [Accussed] is competent but not compellable (s
8(1) QEA)
Revealing a consciousness of guilt: [looking at behaviour, rather than statements]

Reactions to statements or questions in an interview may have evidential value
because they reveal a consciousness of guilt (Woon).

Selectively answering police questions may be indicative of a consciousness of
guilt (Woon).
- In that situation, the right to silence is waived once you start answering
questions, so inferences of guilt can be drawn.

Usually a lie only affects the credit of a witness, but a lie told by an accused may
be an implied admission of guilt if it is conduct inconsistent with innocence
(Edwards). The conditions are:
- Made in or out of court
- Is deliberate
- Relates to a material issue
- Must spring from a realisation or consciousness of guilt – eg. lying about
whereabouts at time of crime; lying about relationship with victim etc.
Page 26
Confessions:

A confession is an admission of full guilt that goes to culpability (Doyle).

Admissibility:

An out of court confession will only be admissible if voluntarily made (McDermott)
-

It will not be voluntary if it is made because of duress / intimidation /
persistent importunity / inducement by a person in authority (eg. police office
offering reward) (s 10 Criminal Law Amendment Act)
Note PPRA: A confession not voluntary where induced by threat or promise (s
416 PPRA), there is an obligation to caution before questioning (s 431 PPRA) and
confession will only be admissible if recorded (audio / video / in writing) (s 436439 PPRA).
Discretion to exclude:
Discretion may be exercised to exclude the confession. Consider the following (Foster):

Is the confession voluntary?

Is the confession apparently reliable?

Is the admission of the voluntary confession unfair to the accused?

Public policy discretion: If the confession was voluntary and it would not be unfair
to the accused to admit it, did the police officers engage in unlawful conduct that
requires the rejection of the confession (Foster; Swaffield)?
- Consider public policy discretion (Bunning v Cross) (above).

Fairness discretion: Is the confession, by reason of the conduct of the police, of
dubious reliability (Swaffield; Lee)?
- Consider fairness discretion (Hasler) (above).

The issue of voluntariness is a question of fact for the judge to be determined on a voir
dire. Onus is on the Crown and the standard is on the BOP.

The issue of discretionary exclusion is also determined on a voir dire. The onus is on
the accused and the standard is the BOP.
Page 27
Page 28
CIRCUMSTANTIAL EVIDE NCE (LECT 12)


Circumstantial evidence is evidence of a basic fact from which the jury is asked to infer
further facts (Shepherd)
Circumstantial evidence can be direct or testimonial and is admissible if it is relevant
(Shepherd)
PEACOCK DIRECTION
A Peacock direction may be given when a case is entirely or substantially circumstantial.
The direction given would be that the accused cannot be convicted unless the
circumstances are such to be inconsistent with any reasonably hypothesis other than guilt
(Peacock).

Ie. Guilt should be the only rational inference that can be drawn from the circumstances
SHEPHERD DIRECTION

A Shepherd direction may be given when some issue in the case must be proved
beyond a reasonable doubt because they are an indispensible link in the chain of
reasoning (Shepherd) (ie. where certain facts are reliant on other facts).

Where a piece of circumstantial evidence is essential, it must be proved BRD

However, random unrelated facts from which circumstantial inferences are drawn only
need to be established on the balance of probabilities (Shepherd).

Note: the overall standard of proof for the case is still BRD.
PROPENSITY AND SIMILAR FACT EVIDENCE (SFE) [COPYCAT KILLERS]

Makin: Can prior conduct be allowed not in terms of looking at the likelihood of
committing another offence, but because it is so probative in terms of the current
charge (Makin – killed adopted child, buried in back yard, evidence that 12 other
children had died in care)

Evidence is generally admissible where relevant to an issue

If probative force exceeds prejudicial effect = admissible

O’Keefe: Is propensity evidence of such calibre that there is no reasonable view of it
other than supporting the inference that the accused is guilty (O’Keefe – 2 different
fires, SFE sought to be led)

Pfennig: The test for admissibility of SFE ia that there must be no reasonable view of
the evidence other than the guilt of the accused (Pfennig; Hoch).
Should be
applying
Pfennig
and Phillips


Propensity evidence should not be used to draw an inference adverse to the
accused unless it is the only reasonable inference in the circumstances (Pfennig;
Hoch).

No longer strictly necessary for the disputed evidence to disclose striking
similarities, although this may assist in satisfying the test.
Phillips: Intermediate and trial courts should continue to apply Pfennig

The judge should exclude SFE if there is a reasonable view that it is consistent
with innocence.
Page 29
SFE - STATUTE:

s 132A QEA: applies to criminal proceedings:


The possibility of collusion or suggestion does not render the SFE inadmissible
where the probative value outweighs prejudice.
s 132B QEA: applies to homicide, offences endangering life or health and assaults:

Relevant evidence of a domestic relationship between the offender and the victim
is admissible.

HML & ors v The Queen: such evidence must be established beyond reasonable
doubt; the phrase “uncharged acts” it not usually useful, rather “other sexual
conduct” should be used.

R v Roach: relevant evidence of the domestic relationship was admissible under s
132B QEA and therefore Pfennig did not apply. It was concluded that the
evidence of previous assaults was relevant to the context of this assault and of
the relationship between the appellant and the complainant.
MOTIVE
Relations between the accused and others are admissible if they establish motive / explain
the occurrence / assist the choice between two explanations (Wilson; Plomp)

Eg Plomp: evidence of accused telling others he was single when he was
married
OPPORTUNITY
Section 590A CC sets of the requirements if accused wants to adduce evidence in support
of an alibi
HABIT
Evidence was admitted to show that a cyclist injured in a road accident at the bottom of a
hill was in the habit of walking his bike down the hill (Eichsteadt)
CONDUCT
Arguable that fleeing overseas after being charged implies consciousness of guilt
(Melrose); if in the habit of telling lies, generally regarded as unreliable (Edwards)
CHARACTER – NEXT PAGE 
Page 30
CHARACTER

s 15 QEA: Questioning a person charged in a criminal proceeding:[accused]

Once being questioned, no privilege against self-incrimination (ie. have to answer
questions)

Where an accused gives evidence, they do not have to answer questions about
previous convictions or bad character unless:
-
Admissible to show the person is guilty of the offence charged (2)(a)
[SFE];
-
Tending to prove a co-accused is not guilty (2)(b);
-
Accused raises their own good character (or casts imputations on the
character of the prosecutor, crown witnesses or co-accused) (2)(c); or

-

The rule is that where defence leads evidence of good character, the
Crown can lead evidence of bad character (including criminal history)
Accused gives evidence against co-accused (2)(d).

Questions (a)-(c) can only be asked with leave of the court (s 15(3) QEA). An
application for leave is done in the absence of the jury (s 15(4) QEA).

Cross examination under s 15(2)(b) or (d) is not direct evidence of guilt; it only
affects credibility as a witness.

Phillips: The discretion to be exercised on an application to cross-examine a
defendant on his prior criminal record is unfettered and governed solely by what
the interests of justice require in a particular case.
s 16 QEA: Witnesses may be questions as to previous conviction:

Previous convictions of a witness are admissible as to credit. Convictions may be
proved if denied (by s 53 QEA (proof of judicial proceedings); s 54 QEA (proof of
identity of person convicted).
REMEMBER: whenever see “must seek leave of the court” consider judicial
discretion to exclude, irrespective of everything talked about if gained eg. unfairly
could be excluded!
Page 31
Page 32
OPINION EVIDENCE (LECT 13)
GENERAL RULE:
A witness must give a plain account of the actual perception of his/her physical senses
devoid of any inference, evaluation, interpretation, belief or opinion.

Exceptions:
 Opinion of law persons
 Expert evidence
 Quasi experts (not opinion but observed fact)

Weal v Bottom: evidence was admissible because it was not opinion but evidence of
fact from experience (ie. more knowledge than average person about what particular
vehicle was capable of)
NON-EXPERT EVIDENCE:

Sherrard v Jacob: A non-expert witness can give inferential evidence on many topics
(not closed category):
 Identification of handwriting, persons and things;
 Apparent age;
 Bodily plight or condition of a person including death and illness;
 Emotional state of a person (eg. distracted, distressed, aggressive; affectionate
etc);
 Condition of things (eg. shabby, expensive)
 Certain questions of value; and
 Estimates of speed and distance (then cross-examiner may test estimate
ability…)
None are conclusive – can be challenged by other evidence
EXPERT EVIDENCE:

Expert evidence is permitted in fields which are “an organised branch of science and
knowledge” or where the court requires additional assistance to draw relevant
inferences (Clark v Ryan; Taylor v Harvey).

The witness must be a qualified expert in the relevant field.

Indicia are examined on a voir dire to determine if a witness has the requisite
degree of expertise in the relevant field.

Expert witness cannot be used to present the plaintiff’s case more vividly and cogently
[clearly] before the jury (Clark v Ryan).

Expert cannot give opinion as to ultimate fact in issue (Murphy) [ie. can comment on
who “caused” the accident, but not whether the def was negligent].

The facts upon which an expert’s opinion is based must be proved by admissible
evidence (Ramsay v Watson).

Note: evidence of facts in criminal convictions can be relied upon in subsequent civil
actions (Hollington v Hewthorn; s 79 QEA).
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Procedural Rules:




Expert evidence is admissible under s 92 QEA (admissibility of documentary evidence).
UCPR require that expert reports in a party’s possession be disclosed to the other
party (r 212) [p66 SG]
S 590B CC requires disclosure of expert reports by all parties.
Early disclosure of expert evidence is recommended (R v Ward).
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