EVIDENCE LAW
SUMMARY
PX SOLUTIONS
EVIDENCE LAW
Exam
A.Is the evidence relevant? [s55]
i)relevant to fact in issue?
ii)relevant to credibility of W?
B.Additional requirements of admissibility?
- is the evidence tendency or coincidence
evidence? [s78, s79]
- is the evidence opinion evidence? [s76]
- is the evidence contents of a document [s48]
C.Will the evidence be excluded?
- Hearsay evidence [s59] (original or testimonial?)
- Credibility evidence [s102]
D. Will there be an exercise of discretion by the trial judge?
- ss135, 136, 137
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EVIDENCE LAW
Discretionary provisions:
[These sections temper the definition of relevance in s55(1)] [These sections impact on the admissibility of expert evidence]
s135 – The court may refuse to admit evidence if its probative value is
substantially outweighed by the danger that the evidence might:
a) be unfairly prejudicial to a party; or
b) be misleading or confusing; or
c) cause or result in undue waste of time.
s136- the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might
a) be unfairly prejudicial to a party; or
b) be misleading or confusing.
s137 – In a criminal proceeding, the court must refuse to admit evidence
adduced by the prosecution if its probative value is outweighed by the danger
of unfair prejudice to the D.
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EVIDENCE LAW
SOURCES USED .....................................................................错误；未定义书签。3 BASICS ABOUT EVIDENCE AND TRIALS ..................... 错误；未定义书签。3 ORDER OF COURT PROCEEDINGS............................................错误；未定义书签。3 JUDICIAL NOTICE .................................................................错误；未定义书签。3 PRELIMINARY QUESTIONS .....................................................错误；未定义书签。3 PRESUMPTIONS ................................................................. 错误；未定义书签。3 PRESUMPTION OF CONTINUANCE ...........................................错误；未定义书签。3 PRESUMPTION OF REGULARITY .............................................错误；未定义书签。3 PRESUMPTION OF THE ACCURACY OF SCIENTIFIC INSTRUMENTS错误；未定义书签。3
PRESUMPTION OF DOLI INCAPAX ...........................................错误；未定义书签。3 RELEVANCE ........................................................................ 错误；未定义书签。3
Provisional relevance ......................................................错误；未定义书签。3
Multiple relevancy ...........................................................错误；未定义书签。3
Drawing inferences ..........................................................错误；未定义书签。3 THE FACT-FINDER’S KNOWLEDGE OF THE WORLD ..................错误；未定义书签。3 RESOLVING FACTUAL UNCERTAINTY........................ 错误；未定义书签。3 ONUS ...................................................................................错误；未定义书签。3 STANDARD IN CIVIL ..............................................................错误；未定义书签。3
Circumstantial evidence ...................................................错误；未定义书签。3 JUDICIAL DISCRETIONS TO EXCLUDE ....................... 错误；未定义书签。3
Unfair prejudice to a party ..............................................错误；未定义书签。3 CREDIBILITY ...................................................................... 错误；未定义书签。3
Incidental attack: s102 doesn’t apply ...............................错误；未定义书签。3
Collateral attack: s102 does apply ...................................错误；未定义书签。3 EXCEPTIONS .........................................................................错误；未定义书签。3 TENDENCY AND COINCIDENCE EVIDENCE ............... 错误；未定义书签。3 TENDENCY RULE ..................................................................错误；未定义书签。3 COINCIDENCE RULE..............................................................错误；未定义书签。3
Where evidence adduced by the P under s97 and s98:......错误；未定义书签。3
Where evidence adduced by D under s97 and s98 ............错误；未定义书签。3
Relationship evidence ......................................................错误；未定义书签。3
One transaction evidence .................................................错误；未定义书签。3 OPINION EVIDENCE .......................................................... 错误；未定义书签。3
Exceptions .......................................................................错误；未定义书签。3 OPINION EVIDENCE BY EXPERTS ............................................错误；未定义书签。3
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EVIDENCE LAW
DOCUMENTARY AND REAL EVIDENCE ...................... 错误；未定义书签。3 Proof of contents of documents ........................................错误；未定义书签。3 Proof of authenticity ........................................................错误；未定义书签。3 THE HEARSAY RULES ...................................................... 错误；未定义书签。3 Scope of the hearsay rule .................................................错误；未定义书签。3 Intention to assert the existence of a fact:.........................错误；未定义书签。3 The original use of a previous representation ..................错误；未定义书签。3 Proof of a person’s state of mind .....................................错误；未定义书签。3 Exception in s72: .............................................................错误；未定义书签。3 FIRST HAND HEARSAY EXCEPTIONS TO S59 ............................错误；未定义书签。3
s63 3 Exception: civil proceedings if maker not available –错误；未定义书签。Exception: civil proceeding if maker available – s64 .......3 错误；未定义书签。Exception: criminal proceeding if maker not available – s65 .... 错误；未定义书
3 签。
Exception: criminal proceeding if maker available – s66 .错误；未定义书签。3 OTHER EXCEPTIONS ..............................................................错误；未定义书签。3 Exception: Documentary business records: s69 ...............错误；未定义书签。3 Exception: evidence relevant for a non-hearsay purpose – s60 . 错误；未定义书
3 签。
Exception: Admissions - s81 ...........................................错误；未定义书签。3 Criminal admissions ........................................................错误；未定义书签。3 COMPETENCE AND COMPELIBILITY .......................... 错误；未定义书签。3 COMPETENCY .......................................................................错误；未定义书签。3 Sworn evidence ................................................................错误；未定义书签。3 Unsworn evidence............................................................错误；未定义书签。3 COMPELLABILITY .................................................................错误；未定义书签。3 Some special categories ...................................................错误；未定义书签。3 Compellability and privilege ............................................错误；未定义书签。3 THE EXAMINATION OF WITNESSES............................. 错误；未定义书签。3 EXAMINATION IN CHIEF ........................................................错误；未定义书签。3 Prohibition on leading questions......................................错误；未定义书签。3 Reviving memory .............................................................错误；未定义书签。3 Prohibition against credibility impeachment ....................错误；未定义书签。3 Unfavourable witnesses ...................................................错误；未定义书签。3 The rule in Jones v Dunkel ...............................................错误；未定义书签。3 CROSS-EXAMINATION ...........................................................错误；未定义书签。3 Leading questions ............................................................错误；未定义书签。3 The rule in Brown v Dunn ................................................错误；未定义书签。3 Cross-examination as to credibility ..................................错误；未定义书签。3 The finality principle ........................................................错误；未定义书签。3 RE-EXAMINATION.................................................................错误；未定义书签。3 EVIDENCE AFTER THE PARTY HAS CLOSED .............................错误；未定义书签。3
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EVIDENCE LAW
Where the party re-opens their case .................................错误；未定义书签。3 Evidence in rebuttal .........................................................错误；未定义书签。3
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EVIDENCE LAW
OPINION EVIDENCE
Section 76
A witness cannot give evidence in the form of an opinion that a fact exists. Test: Is the evidence in the form of an inference that is drawn from observable or communicable data?
All State Life Insurance
Facts: Q. put to witness: What would the witness have done in a hypothetical situation?
Is the answer to this question, evidence of an opinion?
Held: Witness was giving evidence of a fact
Valetta
Facts: Q put to witness: Whether the records of the NCA showed that a certain person was under investigation or not?
Held: The witness was giving evidence of the existence of a fact.
Smith
Facts: Q. Whether the evidence of the police officers was evidence by them of an opinion that Smith was the person in the video tape.
Held: It was evidence of a fact that Smith was the person depicted in the video.
In certain situations, s76 won’t apply: where the evidence that a person held an opinion that a fact existed, is not being adduced to prove that the fact existed, but only to prove that the person held that opinion.
You have to show that it is relevant to proof of a fact in issue on a trial that a person held a particular opinion.
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The critical thing: What is the purpose for which you are adducing the evidence that a person held an opinion? If it is merely to prove that they held an opinion and if whether they held the opinion is relevant to proof of some fact at the trial, then you don’t have a s76 problem.
s76 only applies when the evidence of the opinion is being adduced for the purpose of proving the existence of a fact about which the opinion is based.
Exam:
1. Is this evidence relevant to proof of some fact in issue on the trial? 2. How is it relevant?
3. Does s76 apply or does the hearsay rule apply or does s97, 98 apply?
Exceptions
Section 78
The opinion rule does not apply to evidence of an opinion expressed by
a person if:
a) the opinion is based on what the person saw, heard or otherwise
perceived about a matter or event; and
b) evidence of the opinion is necessary to obtain an adequate account or
understanding of the person’s perception of the matter or event.
e.g Witness is asked, What did you observe the D do after the D exited the bank? Witness says, ‘I saw the D running from the bank’. This is evidence of an opinion because he is inferring that the person is running.
There are many examples where the evidence given by a person depends on their experience of life e.g A person age 25 would be able to give an opinion of whether he/she thought someone was drunk or not. A child age 5 would not.
Penetta
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EVIDENCE LAW
Facts: W was a person driving her call along the road. Car driven by D passed her going the opposite direction. She was allowed to give evidence of her opinion of what speed she thought the car was going.
Held: Evidence wasn’t admissible. It didn’t even pass the s55 test of
probative value.
No person could form a reliable estimate of the speed of a car in those conditions.
Van Dike
Facts: D charged with sexual offence. Part of the evidence against him given by complainant’s mother- gave evidence that often he was seen looking at young girls with a look of wanting on his face. This was allowed in as evidence under s78.
Held: This evidence should have been excluded under s135 due to unfair
prejudice.
Guide Dog Owners
Facts: Witness proposed to give evidence that he had spoken to a no. of people and those people were using the terms ‘seeing eye dog’ and ‘guide dog’ interchangeably.
Q. Was this evidence characterised as evidence of the fact of how these
people used those terms or was it evidence of the witness of an opinion
by him that people used those terms interchangeably.
Held: This was evidence of a fact rather than an opinion.
Sackville’s judgement discusses the circumstances in which s78 applies.
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