EVIDENCE Policy and Revision Seminar Semester 1, 2011 Matt Hearn

PROBLEM QUESTION REVISION 65%

PROBLEM QUESTION STRUCTURE 1. Introduction 2. Relevance 3. Substantive Issue on Facts 4. Discretionary Considerations to Exclude the Evidence (ss 135 – 137)

STRUCTURE – INTRODUCTION 1. Purpose: Why are P adducing the evidence? “P want to adduce the evidence to show that…” 2. Flag the issues for your Examiner! “Whether P will be able to tender this evidence will depend on (1) it’s relevance and (2) [the substantive issue on the facts]”

STRUCTURE - INTRODUCTION 3. Putting it together P want to adduce the evidence to prove that X had the tendency to commit the current offence. Whether P will be able to tender this evidence will depend on (1) it’s relevance and (2) whether it can be admitted as tendency evidence.

STRUCTURE – RELEVANCE  Relevance must be covered for every question/piece of evidence  “Relevance is not irrelevant, but it is not that important”

STRUCTURE – SUBSTATNIVE ISSUE GENERAL TIPS Note Structure: 1. Definition: 2. Rule: 3. Exceptions: 1. Factors 4. Exception to Exception Example: Tendency 1. Definition: evidence of character, reputation or conduct showing a person has a particular state of mind or is likely to act in a particular way 2. Rule: s 97(1): tendency evidence is inadmissible to prove X has a tendency to act in a certain way/with a certain state of mind 3. Exceptions: S 97(1)(a) Reasoanble notice in writing AND signigicant probative value s 97(1)(b) 1. Factors to deteremine SPV 1. Level of similarity of the events (Case) 2. Alternative view (Case) 3. Convictions or Allegations (Case) 4. Frequency (Case) 5. Time gaps (Case) 2. Factors to determine prejudicial effect 3. Conclude

STRUCTURE – SUBSTATNIVE ISSUE GENERAL TIPS  Evidence is not a “normal” law exam. Why?  Think twice: is the issue really there?  Think: what is the examiner asking me to spend time discussing?  Specificity  “Leave” = s 192(2)  Use of the common law  Factors  Analogies  Codifications  Make a conclusion

STRUCTURE – CONCLUDING  ss 135 – 137  Be specific and know the difference  S 135 = general  S 136 = jury direction  S 137 = criminal  Conclude with overall opinion

EXAM CHECKLIST: THE COURSE IN 20 MINUTES  Relevance  Discretions  Competence  Normal  D in Criminal Proceedings  Impaired/Children  Sexual Assault Victims  Compellability  Rule  Exceptions  Family of D  Multiple Ds

 Examination of Witnesses  Evidence in Chief  Leading Questions  Refreshing Memory  Prior Consistent Statements  Unfavourable Witnesses  Cross-Exam  Leading Questions  Questions to Discredit W  Prior Inconsistent Statements  Unfavourable Witnesses  Re-Exam  Re-Establishing Creditbility [think: link to credibility] EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Privilege  Self Incrimination  At Trial  Pre-Trial  Client Legal Privilege  Disclosure Outside Court  Legal Advice Privilege  Litigation Privilege  Has there been loss/waiver of the privilege?  Generally  Consent/Inconsistent Acts  Defence of Accused Persons  Joint Civil Claims  Misconduct  Note: Do we have a copy of a document?  Matters of State/Public Interest  Religious Confessions EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Credibility  General Rule  Exceptions  CE W as to Credibility  CE D as to Credibility  Prior Inconsistent Statements  [link: do we need to re-examine to re-establish credibility?]  Character  Character of D  Character of V in rape cases EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Right to Silence  Pre Trial  At Trial  Nb: Need for Weissensteiner? EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Hearsay  1 st hand or 2 nd hand?  General Rule  Exception  General Exceptions  Competence Issue  Relevant for non-hearsay purpose  Business records exception  1 st hand Exceptions  Civil, maker NA  Civil maker A  Criminal, maker NA  Criminal, Maker A  Contemporaneous Statements EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Tendency and Coincidence  Tendency evidence?  And/Or Coincidence evidence?  Test  Notice  AND Significant Probative Value  Factors: Consider common law Pfennig/AE/Hock etc  Balancing test with prejudicial effect  Need to apply Res Gestae? EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Admissions  General Rule  What type of evidence do we have?  Official interview requirements  Can we exclude?  Voluntariness  Reliability  Unfairness  Improperly Obtained EXAM CHECKLIST: THE COURSE IN 20 MINUTES

 Prior Inconsistent Statements  Link in with multiple topics: know where!  Rule: Prima facie blocked  Test for admitting: Need to substantially affect credibility  Further criminal protection  Comply with Browne  Particulars  Can’t adduce without giving sufficient information EXAM CHECKLIST: THE COURSE IN 20 MINUTES

QUESTIONS?

POLICY REVISION 35%

POLICY EXAM STRATEGY  One Hour: First or Last?  Hedge your bets  Think: Are there any new additions to the reading guide?

TENDENCY AND COINCIDENCE HEARSAY PRIVILEGE

STRUCUTING YOUR POLICY NOTES 1. Historical View 2. Current Law 3. Changes from Old Common law 1. What is the change? 2. Rationale? 3. Arguments for the Current Approach 4. Arguments against the Current Approach 5. Options for Reform

STRUCTURING YOUR EXAM ANSWER Note: a guide only: answer the question! 1. Introduction 2. Current Law/Change/Rationale 3. Argument for the Current Approach 4. Argument against the Current Approach 5. Options for Reform 6. Conclude

HEARSAY

 Rationale  Creature of the Common Law (Benz)  Reliability and weight of the evidence is difficult to assess and cannot be properly tested in court  Current Law v Historical view  S 59(1)/(2), operating as an exclusionary provision  Common law: wider scope  Practical effect: to increase the quantity of hearsay evidence in court  Changes from the Common Law  Change 1: Introduction of Unintended Assertions  S 59(2A)  Cf Common law: express and implied assertions  Advantages  Allows unintended assertion

 Disadvantages  Can’t necessarily be cross examined  Ambiguity  Deane J’s comments in Walton cf Hannes  Change 2: Evidence Relevant for a Non-Hearsay Purpose  Common law position: admissibility determined separately  Current law: s 60(1)  Advantages  Old distinction artificial and ineffective  More lenient (good or bad?)  Disadvantages  Judicial interpretation in Lee cf legislature’s intention  Solution: s 60(2)  Is the solution undone?: s 60(3)

 Change 3: Criminal and Maker Available  Current Law: s 66(2) “Fresh in Memory” Requirement  Rationale  Judicial Confusion: Graham  Advantages  Solution: s 66(2A)  Disadvantages  Restrictiveness

 Options for Reform  Develop “Fresh in the Memory” for Civil Proceedings  Rationale  Disadvantages  Abolish Hearsay Rule in Civil Cases  Adopt the UK approach in Civil Cases  Rationale  Disadvantages  Telephone Exception  Introduce exception for statements over the telephone (see HCA in Walton)  Rationale: common and frequent  Advantages  Disadvantages

 Concluding Comments  Flexibility v Certainty of Law  Generally, are specific exceptions to Hearsay good?  Restrictiveness of Australian Approach

PRIVILEGE NOTE: IF YOU ARE CONISDERING WRITING ON THIS TOPIC, READ MCNICOL, LAW OF PRIVILEGE IN YOUR READING GUIDE; WE DO NOT HAVE TIME TO COVER POLICY SURROUNDING PRIVILEGE IN DETAIL, RATHER THE BROADER ISSUES WILL BE COVERED

 Historical View and Evidence Act  Policy Rationale  Change From Common Law 1: Legal Advice Privilege  Change from Common Law 2: Rules v Rights  Disadvantages  Anomalies  “Change” from Common Law 3: Privilege Against Self Incrimination  “Curtailing” of the Common Law  Disadvantages  Uncertainty  “Change” from Common Law 4: Matters of State  Consistency – recognition of common law arguments  Points of difference  Disadvantage  Uncertainty  Change 5: Use and Unity (Sorby) v Certificate  Options for Reform  Expanding the Scope  S 134

TENDENCY AND COINCIDENCE

 Historical View: Development of Common Law  Makin  Hock and Pfennig  Crimes Act s 398A(2)  Current Law: Evidence Act Approach  S 97/s98  Reflection of Makin per Lord Hershall  Uncertainties with Common law: Ellis

 Disadvantages  Should only apply in Criminal Proceedings  Inconsistent with the Terms of the Act  Options for Reform  Expansion of Res Gestae  Definition and Rationale  Advantages  Disadvantages  Codification of Factors  Rationale: Abolish any considerations of the Common Law  Disadvantages  Replacement with an Interests of Justice Test  Similar to s 398A(2)  Disadvantages

SOME NOTES…  Practice Exams: Cherry Pick  Gans and Palmer

QUESTIONS?