Criminal Procedure and Evidence Full-Semester-Notes

CRIMINAL PROCEDURE & EVIDENCE
WEEK 1: THE ADVERSARIAL CRIMINAL PROCESS

INTRODUCTION
THE SYSTEM OF CRIMINAL PROCEDURE IN AUSTRALIA
R V LOUISA COLLINS
WEEK 2:
PROOF
FORMS OF EVIDENCE
TESTIMONY
DOCUMENTARY EVIDENCE
OTHER EVIDENCE
WEEK 3:
ADMISSABILITY AND RELEVANCE
JUDICIAL DISCRETIONS
WEEK 4: HEARSAY I
HEARSAY AND ORIGINAL EVIDENE

THE RULE AGAINST HEARSAY – S 59
 DEFINITION OF HEARSAY
 RATIONALE FOR THE RULE
 IMPIED HEARSAY
EXCEPTION – S 60
COMBINED OPERATION OF S 60 & S 136.
WEEK 5: HEARSAY II
EXCPETIONS
WEEK 6:
ADVERSARIAL ETHICS (MOD 9)
PRIVILEGES (MOD 10)
WEEK 7:
OPINION EVIDENCE
IDENTIFICATION AND UNRELIABLE EVIDENCE
WEEK 8:
RIGHT TO SILENCE
POLICE QUESTIONING
ADMISSIONS
WEEK 10:
TENDENCY AND COINCIDENCE EVIDENCE
CHARACTER EVIDENCE
WEEK 11:
QUESTIONING WITNESSES
CREDIBILITY
WEEK 12:
PRINCIPLES OF CRIMINAL INVESTIGATION
ARREST AND DETENTION AFTER ARREST
WEEK 13:
ILLEGALLY OBTAINED EVIDENCE
ENTRY AND SEARCH
WEEK 1
MODULE 1 – THE ADVERSARIAL CRIMINAL PROCESS
INTRODUCTION TO EVIDENCE LAW

 What is Criminal Procedure & Evidence?
i. Evidence law is the branch of law that defines the type of information that can
be received by a decision-maker that may be properly used by the decision-
maker in the resolution of the factual issues in a dispute in a case.
ii. Information that can be received for this purpose is called ‘admissible’.
iii. Information that is excluded is called ‘inadmissible’.
iv. Information needs to be relevant, reliable and credible. Evidence law is, thus,
the formalisation of the fact-finding inquiry that individuals perform as part of
their everyday lives.
v. Evidence law is procedural, not substantive, this means that, there are two
types of rules of evidence.
 There are regulating matters of process concerning how evidence can be
given and who can give the evidence.
 There are also rules prescribing what sort of information can be received by
the courts in order to resolve the matters in dispute.
vi. The objectives of evidence law involve:
i. Truth – as the most obvious objective of the law of evidence is to
ascertain the ‘truth’.
ii. Disciple – which, arguably, this area is flawed.
iii. Protection – this requires that parties to litigation are treated fairly and
are protected from possible prejudiced. This objective remains
important, and the rules of evidence that prohibit unfairly prejudicial
evidence being admitted against an accused should be interpreted
strictly.
EVIDENCE ACT
 The law of evidence has its origins in common law
 Much of the law of evidence has largely now been enshrined in the main
governing legislation: Evidence Act 1995 (NSW).
i. Purpose of the act is to regulate the fact-finding process
ii. Primarily regulates admissibility. There are three stages to determine
admissibility:
i. Relevance – whether the material sought to be presented as evidence
is relevant.
ii. Does the evidence fall within one of the exclusionary rules – (e.g.
hearsay rules, opinion evidence)
iii. Even if evidence is relevant and not excluded, the court (the judge)
retains a discretion to nevertheless exclude or permit (with a caveat)
certain evidence.
 History & Purpose

i. The law of evidence has always existed, however the modes of trial developed
greatly over the years.
THE SYSTEM OF CRIMINAL PROCEDURE IN AUSTRALIA

 Overview of criminal laws and practices of the original Australians
i. Standard of proof = beyond reasonable doubt.
 Overview of the common law adversarial criminal process?

i. The rules of evidence and of criminal procedure operate in a particular type of
system – known as the adversarial system.
ii. In the adversarial process there is clear separation between the investigation
process, & the trial process.
 The investigation (the gathering of evidence) is left to the investigative
authorities.
 The trial is the ‘proof’ stage where the evidence is examined and tested.
iii. The presumption
 The passive role of the judge and jury in the adversarial process
i. The determination of the facts is done by an impartial tribunal (judge or jury)
who had no part in the investigation or in the presentation of evidence.
ii. The passive role of the judge should not, however, be overstated – whilst
judges do not interfere/intervene often – they do have a paramount duty to
ensure a fair trial which may, in turn, required them to take on a more active
role in the presentation of evidence.
 Per the Uniform Evidence Act (s 26) judges have the ultimate control over
questioning witnesses.
 The trial as the focus of decision-making

i. The trial is presided over by a passive judge who leaves the decisions about
what evidence to use/what witnesses to call upon and how they will be
questions, to the parties.
CASE STUDY – MODULE 2

R v LOUISA COLLINS (1888)

Facts:
 Louisa Collins was charged in 1888 with the poisoning murder of her husband (Charles) in
Botany, NSW.
 She endured two coronial inquests, four trials, and an appeal before she was convicted
and then sentenced to death.
 Collins was hung at Darlinghurst gaol – she was he first woman to be hung in Darlinghurst
and the last woman to be hung in NSW.
 Collins husband became ill due to the alleged poisoning, by placing rat poison in his milk,
which was similar to the circumstances of how her first husband died.
Evidence & Procedure: the following is a summary of the evidence that was available to the
prosecution.
 Prior to his sudden illness, Charles was described as being a strong, healthy and able-
bodied 50-year-old.
 A slight trace of arsenic was found in the exhumed body of Charles, 17 months after his
death.
 Louisa appeared indifferent to the fate of her husband Charles and refused to wear
mourning clothes as was the custom of the time.
 Louisa hold police and the life insurance agent that Charles was dying at the time when
the doctor said he would recover.
 Louisa took frantic steps to ensure Charles signed a will in her favour shortly before his
death.
 Michael Collins was 26 years of age, fit and healthy and had never been seriously ill.
 The symptoms of his sudden illness were consistent with arsenic poisoning.
 Arsenic was found in Michael Collins’ stomach and in bodily fluids expelled before he died.
 Arsenic was also found in a small glass tumbler of milk that Louisa had given to Michael
during his illness.
 Louisa was the person solely responsible for administering drink and medicine to Michael
during his illness, prior to his death.
 Louisa’s children said that their mother had forbidden them from drinking a jug of milk in
the kitchen before Michaels death, stating it was ‘for Mick’.
 Michael had been a lay-about and a gambler and by the latter stages of his marriage to
Louisa, had spent all of Charles life insurance and had accrued considerable debt.
 Michael had begun to argue with Louisa about her frequent heavy drinking.
R v LOUISA COLLINS (1888)

Summary of Louisa’s evidence in defence:
 Arsenic may enter the body through other means that oral ingestion.
 Both Charles and Michael had worked as wool washers and had carted sheep skins in
Botany. Farmers were known to have dipped their sheep in arsenic baths to rid the wool of
lice and ticks before sheering. Arsenic might have entered their bodies through handling
the skins.
 Michael had a large sore on his leg that he may have treated with a paste of arsenic, as
some people did at the time.
 Some people even consumed small amounts of arsenic for health purposes. Although,
Charles and Michael were not in the habit of doing or had ever done so.
 There was the possibility that the glass tumbler of milk had been tampered with because it
was unsealed.
 Louisa had gone to considerable lengths to get medical assistance for Michael and had
exhibited distressed behaviour during his illness and after.
 Michael had been very depressed after his baby’s death and had the opportunity to
commit suicide.
WEEK 2
MODULE 3 – PROOF
 BURDEN (ONUS) OF PROOF
i. In a criminal trial the burden of proof is accused innocent until proved guilty,
and the prosecution bears the onus (has the burden) of proving the accused’s
guilt beyond reasonable doubt.
ii. It can be misleading talking about burdens of proof, because the term has two
distinct meanings: evidential burden and legal burden.
iii. Evidential burden – refers to the responsibility of the party to adduce sufficient
evidence for a court to consider the existence of a factual issue. Is a
preliminary threshold issue as to regard whether an issue is worthy of a courts
time.
iv. Legal burden – the responsibility of a party making the allegation to establish
the elements of a charge, to the requisite standard of proof in order to secure
an order of the court.
 STANDARDS OF PROOF
i. The law has several standards of proof procedures that must be met,
depending on the nature of the matter, i.e.:
 S 140 of the Evidence Act states that in civil proceedings, ‘the court must find
the case of a party proved if it is satisfied that the case has been proved on
the balance of probabilities.’
 S 141 of the EA states that in criminal proceedings, ‘the court is not to find
the case of the prosecution proved unless it is satisfied that it has been
proved beyond reasonable doubt.’
 Alongside standards of proof, s 142 of the EA states that ‘the court must also
find the facts necessary for deciding proof is –
a) A question whether evidence should be admitted or not admitted,
whether in the exercise of a discretion or no, and that, in determining
whether it is so satisfied, the matters that the court must take into
account include the importance of the evidence in the proceedings,
and the gravity of the matters alleged in relation to the question.
 JUDICIAL NOTICE
i. Judicial notice is rule in the law of evidence that allows a fact to be introduced
into evidence if the truth of that fact is so notorious or well known, or so
authoritatively attested, that is cannot reasonably be doubted.
ii. It is important to note that part 4.2 of the EA deals with judicial notices,
particularly s 143 (matters of law), where it states that ‘proof is not required
about the provisions and coming into operation of an Act, an imperial Act in
force in Australia, a Commonwealth Act.’
 In other words, the court will accept a fact if it is notoriously well known or
an indisputable fact, such as an instrument of a legislative character.
iii. S 144 deals with matters of common knowledge, in that ‘proof is not
required about knowledge that is not reasonably open to question and is –
a) Common knowledge in the locality in which the proceeding is being held
or generally, or
b) Capable of verification by reference to a document the authority of
which cannot reasonably be questioned.
 In other words, there does not need to be evidence for a fact if it is
common knowledge or again, notoriously well known.
 DIRECT AND CIRCUMSTANTIAL EVIDENCE

i. Direct evidence – does not involve any inferences or implications.
 E.g. a witness to a murder trial saying they saw the accused shoot a gun and
the victim fall and die – is direct evidence.
 The only inference that is taken into account is the credibility of the witness*.
ii. Circumstantial evidence – always requires a drawing of an inference from one
fact to another. A key aspect here is that there is usually more than one
possible explanation for the evidence.
 It is possible to convict on wholly circumstantial evidence only in
circumstances where the only rational inference from the evidence is
guilt.
 The rule is that the crown must be able to establish that the only rational
inference (in terms of the facts) is guilt. If there is any alternative hypothesis
that is rational/consistent with innocence, then the accused is free.
PLOMP v THE QUEEN [1963] HCA 44
Facts:
- Plomp was charged with the murder of this wife.
- Prosecution must prove that Plomp killed his wife with the requisite intention.
 Direct Evidence – dead body of wife washed up on beach.
 Circumstantial Evidence – wife was drowned, water was found in the lungs, suggesting
that she was alive when in the water. She had gone surfing with her husband. They knew
the beach well and the surf was calm. She was a strong swimmer and the water was waist
deep.
- Plomp stated there was a strong undertone and he tried to grab her, but her swimmer
strap ripped. This evidence did not suggest that it was possible for her to have drowned in
these circumstances.
 Circumstantial Evidence – had an affair with another woman, told mistress his wife was
dead, and he was widowed. Plomp told his children they were going to have a new mum.
 All of this circumstantial evidence adds up to a motive for Plomp to kill his wife.
Held:
- Circumstantial evidence can be compelling.
- Where compelling inferences arise in a case, it is for the jury to determine whether the
inference of guilty arises, and if so, whether is completely overcomes all other inferences
so as to leave no reasonable doubt in their minds.
- Where there is such a high probability that the occurrence of those circumstances would
be accompanied by the existence of that fact in issue, then the contrary cannot be
reasonably be supposed.
- If the jury considered that there is any reasonable explanation of those circumstance
which is consistent with the innocence of the accused, they must find him or her not guilty.
Circumstantial Evidence Notes:

- Where there is a wholly circumstantial case, the jury must be told of an alternative
hypothesis that is in line with the presumption of innocence.

- If there is a potential innocence explanation, this forms a reasonable doubt.
MODULE 4 - FORMS OF EVIDENCE

Forms of evidence does not refer to types of evidence, but rather, ways of adducing
evidence (the form in which the evidence is presented in court). In other words, the
same item of evidence might be adduced in different ways.
There are 3 ways in which evidence may be adduced:

i. Testimonial evidence – (oral/verbal evidence by witnesses)
 In order for a witness to give oral evidence they must swear to tell the truth
(an oath) or make an affirmation.
ii. Documentary evidence – (tender of documents)
 This is written evidence, such as letters, contracts and emails.
iii. Real or ‘other’ evidence – (direct presentation of a thing before the court)
 Physical/tangible items
 i.e. finger prints, murder weapons.
There are different rules concerning the criteria for evidence, which are contained in
chapter 2 of the Uniform Evidence Act.
TESTIMONIAL EVIDENCE
 s 12 EA – every person is assumed to have capacity to give evidence
 There is no minimum age for giving evidence
 S 13 determines competence and lack of capacity
i. S 13 (8) – for the purpose of determining a question arising under this section, the
court may inform itself as it thinks fit, including to obtaining information from a person
who has relevant specialised knowledge based on the person’s training, study or
experience.
DOCUMENTARY EVIDENCE
 Any record of information and includes anything that includes writing
 E.g. a coke can with the words ‘coca-cola’

 The original document rule was to ‘protect against fraud’  Note that s 51 of the
EA states that ‘the principles and rules of the common law that relate to the
means of proving the contents of documents are abolished’.
i. Essentially, this means that statute has replaced the common law rules in
regard to the original document rule.
 SS 47-51 contain the principal sections re: the ways in which the contents of a
document can be proved apart from tendering the document itself. Some other
methods include adducing from a witness evidence of the contents of the
document in question.
 S 47 (1) is important re: documentary evidence, as it goes to the heart of the
concept of documentary evidence. Always distinguish ‘documents’ which is a
definition from ‘documentary evidence’ as this includes the contents of the
document which is of interest.
REAL OR ‘OTHER’ EVIDENCE

 Any evidence that is neither testimonial nor documentary. Sometimes referred to
as ‘real’ evidence.
 Refers to things brought into court, such as weapons, blood-splattered clothing,
and the examination of things i.e. land that is too large to cannot be physically
brought in to the courtroom.
 S 52 of the EA allows for other or ‘real’ evidence to be adduced other than
testimonial or documentary means. S 53 of the EA, judges can make orders for a
demonstration, experiment or inspection to adduce evidence as s 54 allows the
jury to make an inference from what it sees, hears or otherwise notices during a
demonstration, experiment or inspection.
 As mentioned in s 53 this will only be held if the parties will be given a reasonable
opportunity to be present and the judge and jury will be present.
CASE LAW
Kozul v R [1981]
Facts:
- Kozul was robbing a victim at gun point. There was an accidental discharge of the gun during the
robbery.
- Judge/jury cannot conduct an experiment with the gun because they would be creating new
evidence in the jury room. Although an experiment in an open court is allowed.
- Hence, the jury can inspect, but cannot experiment.
Held:
- The principle no longer applied to the extent that the issue is covered by the Uniform Evidence
Law.
Evans v R [2007]
Facts:
- CCTV footage had shown the robber wearing overalls, sunglasses and a balaclava.
- A pair of overalls and a balaclava was found at the house of the accused.
- During his trial, the prosecutor asked the accused to put on the balaclava, overalls and a pair of
sunglasses so that the jury could see him and compare with the person in the video footage.
- The accused was ultimately convicted.
- One of the questions on appeal was whether s 53 of the Uniform Evidence Law applied in the
scenario.
Held:
- S 53 did not apply, as the evidence was relevant but not admissible.
R v Milat [1996]
In the trial of Ivan Milat for the murder of 7 backpackers, Hunt J had to decide, pursuant to s 53,
whether the jury should be permitted to visit the Belanglo State Forest to inspect where the murders
occurred. The defendant Milat would not be present at the view.
Held:
- The judge decided that the inspection could go ahead although Ivan did not want to go to the
view, because the defendant was given the opportunity.
WEEK 3
MODULE 5 – ADMISSABILITY & RELEVANCE
 INTRODUCTION
i. Admissibility of evidence refers to the question whether an item of evidence
will be permitted to go before the jury (i.e. whether it will constitute part of the
evidence that the jury (trier to fact) may rely on in coming to a decision).
ii. The admissibility rules are contained in chapter 3 of the Uniform Evidence
Law (Evidence Act 1995 (NSW)).
iii. It is important to distinguish between the admissibility of evidence – (matter of
law), and the weight to be given to evidence – (matter for the jury).
iv. It is also important to distinguish between adducing evidence and the
admissibility of evidence.
v. The rules of adducing evidence are concerned with the manner in which
evidence may be proved, assuming that it is admissible.
RELEVANCE
 The first rule/hurdle to admissibility – if it is not relevant, it is excluded.
 This is the only rule of inclusion – all other thresholds are rules of exclusion.
 It is the threshold rule – i.e. every item of evidence must pass the threshold of
relevance before it is permitted to go before the trier of the fact.
The EA defines relevance in s 55 as:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could
rationally affect (directly or indirectly) the assessment of the probability of the existence
of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relations only to—
a. The credibility of a witness, or
b. The admissibility of other evidence, or
c. A failure to adduce evidence.
 S 55, however, should be read in conjunction with s 135 which can operate to
exclude evidence that although is logically relevant, may be –
a. Unfairly prejudicial to a party, or
b. Misleading or confusing, or
c. Cause or result in undue waste of time.
 Does the evidence make any difference in establishing the fact in issue? 
Determine what is the fact in issue?
 Criminal matters: elements of the charge. Primary facts are the facts that the
court needs to establish in order to establish the elements and then the ultimate
fact in issue (the crime).
RULES OF ADMISSABILITY
i. Is it relevant?
 Look at s 56.
 Also consider, s 55 however, where it defines ‘relevance’ as:
(1) ‘the evidence that is relevant in a proceeding is evidence that, if it
were accepted, could rationally affect (directly or indirectly) the
assessment of the probability of the existence of a fact in issue in the
proceeding’.
 If it is relevant, proceed to the next step, if not, the evidence is already
admissible.
 Note: ‘a fact in issue’ refers to anything that is a dispute, as relates to
disputes on a case-by-case basis.
ii. Does an exclusionary rule apply?
 This includes hearsay, opinion, and/or tendency.
iii. IF an exclusionary rule applies, then check if there are expectations
to the rule of exclusion.
 If there is, then the evidence is admissible.
 I.e. hearsay exceptions, opinion exceptions.
iv. Are there any discretionary exceptions?
 Look at ss 135, 136, 137, 138, 90 as unfairly prejudicial evidence may be
excluded (s 135).
CASE LAW:
SMITH v R (2001)
Facts:
- Smith indicted in District Court, being in company of others, robber a bank.

- Was charged as an accomplice in a bank robbery.
- He pleaded not guilty but was convicted.
- The robbery and the fact that it was committed by 4 men was not an issue in the trial, but the
bank security showed the bank robbery in progress.
- The CCTV was shown to the jury and the prosecution showed an image of the perp standing
near the ATM.
- Police officers identified the accused in CCTV footage, as he was known to them.
Fact in issue:
- Whether the person in the photo was Smith (aka – concerning the identity of the accused).
Issue:
- The police officers depicted the person in the footage, as the defendant who appeared in court.
Held:
- The police officer had no special knowledge which could rationally affect the jury’s assessment of
the evidence, therefore the testimonial evidence was not relevant evidence and therefore not
admissible.
Rationale for the decision:
- It is for the jury to determine whether the person in the photo is the accused.
- What would be relevant, however, is the accused’s wife evidence in identifying her husband as
the accused in the CCTV footage. Her footage may be unreliable but is still relevant.
PAPAKOSMAS v R [1999]
Facts:
- P was convicted of sexually assaulting a colleague at a Christmas party. The victim claims that P
forced her to have sex with him in a room. He claimed she consented.
Issue:
- Consent was the core issue. Three witnesses gave evidence that when the victim/complainant
returned to the party, she was crying and when asked what was wrong she replied that she was
raped by P. She then repeated this to another witness, and another woman.
Application:
1. It was relevant to proving the facts asserted by the complainant (that she had not consented
to the sex).
2. It was relevant to supporting the credibility of the complainant.

Held:
- Probative of the facts in issue that she was raped, as well as credibility that she is to be believed.
S 135 of the EA does not apply to procedural unfairness, for instance, the plaintiff serving evidence
after the trial has commenced. The threshold test is whether there is a logical connection between
the evidence and a fact in issue.
R v FIELDMAN (RULING No.1) [2010]
Facts:
- The deceased was riding a stolen bike.
- Involved a factual issues on whether the deceased suddenly slowed the bike down before
impact.
- Relevant of prior convictions of the deceased were held to be relevant, in that they may have
motivated the deceased to flee from the accused with particular desperation.
- Kaye J opines that, the evidence was substantially more probative than prejudicial, and declines
to exercise his discretion under s 135, thus the evidence was admitted.
EVANS v R (2007)
Ratio/judgement:
- The requirement of that the capacity of the evidence to rationally affect the assessment of the
evidence is significant, and it is necessary to point to a process of reasoning by which the
evidence could do so.
- Observing how the accused as the person seen and heard by the witnesses but dressing the
accused in the clothing worn by the person seen by the witnesses gave no assistance to the jury
in determining whether he was the person seen by the witnesses.
MODULE 6 – JUDICIAL DISCRETION

 The idea of a judge having discretion in the admission of evidence, is something
that has been around for a long time. There has long been a discretion in the
judge to exclude legal admissible evidence both generally, and in particular
circumstances in criminal cases.
 Those common law discretions are retained in the EA, although statutory
provisions provide additional clarity - do not coincide precisely with the
discretions at common law.
 There are two very important things to note about judicial discretions:
i. First: they only operate once it is already established that the evidence in
question is admissible.
ii. In other words, if evidence is irrelevant – then that is end of discussion.
iii. They operate to exclude or limit the use of otherwise admissible evidence.
iv. Secondly: there is no discretion in a judge to admit evidence that is
inadmissible. It is only about further excluding evidence that is otherwise
admissible.
v. There also entails the general discretion to exclude or limit the use of evidence
on the grounds of probative value outweighing the risk of unfair prejudice as
the main topic.
Probative value:
 The extent to which the evidence could rationally affect the assessment of the
probability of the existence of a fact in issue.
 It is the ability of the evidence to prove something, or how valuable the evidence
is in proving an issue of fact.
i. Probative value is a measure of how good evidence is in proving something,
whether it’ll be highly relevant or not. When it comes to s 135 of the EA, it is a
discretion as the word ‘may’ was used. In this section, probative value must
refer to the 3 sub-sections which substantially outweigh the probative value.
ii. Take s 137 into account where it only applied to criminal proceedings. The
threshold for s 137 is a lot lower, and where its unfairly prejudicial to the
defendant which outweighs the probative value, the evidence would not be
relevant.
Unfair Prejudice:
 Where the particular type of evidence to be misused by the jury would cause the
jury to prejudge the evidence.
 Evidence is unfairly prejudice if it damages the opponent’s case in an
unacceptable way – Suteski Case. Any kind of evidence that only disadvantages
the opponent’s case but prompts the tribunal of fact to respond irrationally/
emotionally.
 Under s 135 of the EA, the court may refuse to admit evidence if its probative
value is substantially outweighed by the danger that the evidence be unfairly
prejudicial to a party, or be misleading or confusing, or cause/result in an undue
waste of time. This applies to both civil and criminal cases.
 S 137 states that in a criminal proceeding, the court must refuse to admit
evidence if its probative value is outweighed by the danger of unfair prejudice to
the defendant. This section applied in a must more restricted way.
 S 136 states that the court may limit the use of evidence if there is danger that a
particular use may be unfairly prejudicial to a party or be misleading or confusing.
 This discretion is used where the evidence under s 60 may be unfair.
Examples of unfairly prejudicial evidence:

- Evidence of character, particularly ‘bad’ character. Character is a poor indicator of
behaviour; however, evidence of character is highly influential on tribunals of fact.
- Graphic evidence, horrific, emotional …
NOTE: if the evidence is unfairly prejudicial, turn to s 137 first, do not bother
with s 135 as s 137 is a lower threshold to satisfy, in comparison with s 135.
WEEK 4
HEARSAY – Part 1
The rule against hearsay evidence is a long-standing rule of evidence at common

law. The rule is now provided for in NSW by s 59 in the Evidence Act:
Section 59
(1) Evidence of a previous representation made by a person is not admissible
to prove the existence of a fact that it can be reasonably be supposed that
the person intended to assert by the representation.
 Although there are similarities between the common law rule and the rule under
the Act, the Act brought about some significant reforms.
 It is best to ignore any common law formulations of hearsay and instead to
strictly apple the definition of hearsay found in s 59.
 S 59 both defines hearsay and provides the exclusionary rule – the
prohibition on the use of hearsay in court – (note: there are exceptions to the
exclusionary rule!)
 The first thing is to be able to recognise hearsay evidence – that is, to distinguish
between it and original evidence.
o If a witness statement includes ‘I said’, ‘he said’, ‘she said’, one should
immediately consider whether the hearsay rule applies.
Scope of the Hearsay Rule:

 There are four requirements for evidence to be caught by the hearsay rule:
i. The evidence is a ‘previous representation’;
ii. The previous representation was ‘made by a person’;
iii. The evidence of a previous representation is adduced to prove the existence
of a fact asserted by the representation (‘purpose or use of evidence’)
iv. It can reasonably be supposed that the person who made the representation
intended to assert the existence of that fact (‘intention of the declarant’).
1. ‘PREVIOUS  A previous representation is any representation – (i.e. words, silence,

REPRESENTATION’ conduct, or statement of opinion) made between the witnessed events
and the start of the trial.
 In the EA it is defined as a ‘representation made otherwise than in the
course of giving evidence in the proceeding in which evidence of the
representation is sought to be adduced’.
 For the purposes of this definition, ‘proceeding’ does not include

interlocutory proceedings or other hearings that are related to the
‘proceeding in which evidence of the representation is sought to be
adduced’ – (Hoy Mobile, per Rares J at [27]).
 For the purpose of the hearsay rule, previous representations include
representations that are merely implicit in the evidence before the
court.
 To uncover the implicit representations, the court will consider how a
person knows the ‘fact’ they have come to know.
2. ‘MADE BY A  The hearsay rule is expressly limited to representations ‘made by a

PERSON’ person’.
 The rule does not apply to machine or computer-generated
information in respect of which there is no relevant human input.
PURPOSE OR  Evidence will only be caught by the hearsay rule if the evidence
USES OF of a previous representation is adduced for the purposes of
EVIDENCE proving the existence of a fact asserted by the representation.
 Essentially, evidence of a representation is not caught by the hearsay
rule if it is not adduced for the purpose of proving the truth of any
fact asserted in the representation but is instead adduced for some
other purpose.
Accordingly, there is a distinction between hearsay purposes or uses, and
non-hearsay purposes/uses:
i. If the previous representation is ebing used to prove the ‘existence
of a fact … that the person intended to assert by the representation’
it is being used for a hearsay purpose – and is therefore, hearsay.
ii. If the previous rep. is being used in any other way, then it is being
used for a non-hearsay purpose – and the rule does not apply.
3. INTENTION OF  The application the hearsay rule will often turn on what the person
DECLARANT making the representation (the declarant) intended to assert or could
be reasonably supposed to have intended to assert, b making the
representation.
 The use of the word ‘intended’ represents a significant departure

from the rule at common law.
 At common law, the hearsay rule extended to the declarant’s
unintended or implied assertions. This would mean that facts which
were assumed by the declarant would form party of the declarant’s
‘assertions’ and would be limited by the hearsay rule.
 Under the EA the focus on the facts the declarant ‘intended’ to assert
– narrows the scope of the hearsay rule, and in turn, allows more
evidence to be admitted.
4. ESTABLISHING  How do we determine what the declarant intended to assert?

INTENTION  The form of a representation will be a strong indicator of the intended
assertion of the representation.
 E.g. if a witness overheard a gang of criminals talking, and the
members of that gang consistently called one of the members ‘Pablo’
– this would not be hearsay, when used to prove that the gang
member’s name was Pablo. If, however, one of the gang members
introduced another member to the witness as “this is Pablo” it would
constitute hearsay when used to prove the members name was
Pablo.
To determine whether the hearsay rule applies, ask ‘why is the previous representation being led;
what is it that the prosecution seek to prove by adducing evidence of the previous representation?’.
 Is it being led to prove the existence of a fact that the person who made the representation
intended to assert? If yes, then it is caught by the hearsay rule.
 Or is the person’s past representation merely conveying some other information that the person
who made the representation did not intend to assert? If yes, then it is not caught by the hearsay
rule.
There are 2 essential components to hearsay:

I. An out of court statement, that asserts a fact.
II. This fact asserted in the statement is being used for a particular purpose.
For example:
 Flossy sees 2 cars collide in an intersection. She states that the light was red and calls Fred to give
evidence. Fred thinks back to the incident and remembers what Flossy told him as the light as red. This
is hearsay evidence.
 Such evidence is not generally admissible in court, as it is not strong, nor is it given under oath, nor can
it be cross-examined.
 What is more preferable in this situation, is that Flossy gives evidence as she can give witness account
of the evidence.
Subramaniam v Public Prosecutor [1956]

Facts:
- The defendant was charged with unlawfully being in possession of ammunition. His defence
was that hr had been captured by terrorists who threatened to kill him if he didn’t carry the
ammunition for them.
- Evidence of the threat was not hearsay because the purpose of the evidence was to prove that
he had been acting under duress (the fact that he had been threatened) and not for the purpose
of proving that the terrorists would kill him if he didn’t (the truth of what was said).
 Prior to the EA – Subramaniam upheld the view that ‘evidence of statement may
or may not be hearsay. It is not hearsay when it is proposed to establish, not the
truth of the statement, but the fact that it was made’.
Other examples of out of statements adduced to prove something other than the
truth of statement are evidence of:
I. Oral discussions adduced to prove the terms of the alleged agreement;
II. A previous statement by a witness adduced to prove
consistency/inconsistency with the witness’s in-court testimony, and thus,
undermine credibility of the witness in court; and
III. Medical history given by patient to doctor to explain the doctor’s diagnosis
or treatment.
HEARSAY UNDER THE UNIFORM EVIDENCE LAW

The Act refers to the hearsay purpose as being to – prove the “existence” of a “fact”
asserted by the “previous representation”, rather than to prove the truth of an out of
court statement.
Thus, evidence of a previous representation which asserts a fact is hearsay if:

(per s 59) –
i. The evidence is adduced to prove the existence (truth) of the fact asserted
(this reflects the common law as in, e.g. Subramaniam); and
ii. The maker of the representation intended to assert he fact (this narrows
the concept of hearsay, as the common law included both intended and
unintended assertions in the definition of hearsay).
REPRESENTATIONS: see definition in EA

 Express oral or written representations: express oral representations and
express written representation such as a written police statement.
 Implied representation: an assertation, which although not explicitly stated is
implicit in what a person says. The maker of the statement may or may not be
intending to make that assertion, depending on the circumstances.
 Representations to be inferred from conduct: the intention of the person in
communicating anything is not important at this stage. It is enough that an
assertion can be inferred from the conduct.
i. I.e. – R v Rose, as whether a representation does arise from the silence or
non-action of a person on any particular occasion will depend upon the
circumstances and in particular, whether an inference can be drawn that the
person by silence, or non-action made a representation of fact, regardless of
whether or not the person intended to convey the representation.
 Representation not intended to be communicated: example would be an
assertion made in a private diary. The owner of the diary does not intend for it to
be seen by anyone.
 Representations not communicated: representations that are not in fact

communicated (whether intended or not), e.g. an assertion in a letter which has
not yet been posted.
 Previous representation made by a person: only representations made by
persons will be hearsay. The rationale is that such representations and any
assertions in them do not suffer from the potential unreliability of human
assertions, in the sense of a human’s potential for deceit.
IMPLIED HEARSAY
 Implied hearsay is simply a previous implied representation that is used for the
purpose of proving the fact intended to be asserted by the implied representation.
i. I.e. the case of Waltons v R as one of the major questions included whether
the statement “hello daddy” was hearsay or not. The majority considered the
evidence was hearsay and inadmissible for those purposes.
 If we were to apply s 59 to the above, the boy’s statement is a previous
representation. Also, it will be considered hearsay if it is being used to prove a
fact intended to be asserted by it. The statement does not explicitly state any fact,
however, there is an implied assertion that “this is my daddy on the telephone”.
 The answer is that the boy greeting his father on the telephone is unlikely to have
intended thereby to make an assertion to anyone overhearing his conversation.
Therefore, the statement is not hearsay or to put it another way, it is beyond the
scope of the hearsay rule.
CASE LAW:
*** Lee v The Queen (1998)
 INTENTION REQUIREMENT AND EXPRESS REPRESENTATIONS
Facts:
- A witness (Calin) who gave a statement to police that he heard the defendant (Lee) say – “I
fired two shots”.
- Later in the witness box, he denied having heard the defendant say those words.
Issue:
- Whether Calin’s previous statement to the police was hearsay or not.
Held:
- Calin’s statement to the police could not be used to prove Lee’s confession. The only asserted
fact in Calin’s previous representation was an assertion by Calin that Lee said something.
- Thus, the police statement can be used for credibility and assert what Lee said, not what lee
did (there is not hearsay use).
- In other words, the fact that Calin might unintentionally have conveyed that Lee did something
(fired 2 shots) is not to the point. The question for the purposed of the hearsay rule is not this.
Rather, the question is what can Calin be taken to have intended to assert. The answer is that
all that Calin can be taken to have intended to assert was that Lee said something.
*** R v Rose [2002] NSWCCA 455

 Silence – as hearsay
Facts:
- Criminal matter where the police surveyed 300 university students and asked them if they had
ever seen the victim in the company of a person that drove a white ford falcon.
- There were no positive responses.
- The defence tried to lead the results of this survey for the fact (that you would reasonably draw
that no one out of 300 people had seen the complainant of someone in a ford falcon) 
essentially, lead the evidence for the truth.
Held:
- Held to be hearsay evidence for the purpose of the defendant trying to prove that no one had
seen the complainant in the company of the car.
STEPS FOR IDENTIFYING HEARSAY EVIDENCE

The following are the main steps to identifying hearsay evidence:
1. Is the evidence a previous representation in the nature of an assertion made by a
person?
1.1. Was the representation made out of court – (otherwise than in the course of
giving evidence)?
1.2. Was the representation made by a person?
1.3. Does the representation assert a fact – (orally, in writing, expressly, implied or
by conduct)?
2. What is the purpose of the evidence – (what fact is the party seeking to prove by
it)?
This is the same as asking what relevance has the representation in the case for
the party who is seeking to use it?
2.1. Is it relevant to prove the fact asserted in it?
2.2. Was that fact intended to be asserted by the person who made the
representation>
3. If the answer to questions 1.1. – 2.2. is ‘yes’  then the evidence is hearsay.
If the answer to any of those questions is ‘no’  then it is not hearsay.
 EXCPETIONS TO THE RULE AGAINST HEARSAY

i. The admissibility of hearsay will ultimately depend on whether or not one of the
exceptions applied to allow hearsay evidence to be admitted in spite of the
exclusionary rule.
ii. S 60 states that he hearsay rule does not apply to evidence of a previous
representation that is admitted because it is relevant for a purpose other than
proof of the fact intended to be asserted by the representation.
iii. S 60 allows hearsay evidence prior to a consistent or inconsistent statements
made by a witness to be used to prove the existence of a fact as well as attack
the witness’s credibility.
iv. The critical part of the section is the phrase ‘that is admitted’. S 60 operates on
a previous representation that has already been admitted, because it is not
hearsay. To understand s 60, remember that previous representations may
have dual relevance:
 It may be relevant for the purpose of proving the asserted fact in it (a hearsay
purpose);
 it may also be relevant for the purpose of proving the fact that the
representation was made (a non-hearsay purpose).
v. The effect of s 60 is that if the representation is admitted for its non-hearsay
purpose, it may also be used for any relevant hearsay purpose, to prove the
fact asserted in it.
Welsh v R (1996) 90 A Crim R 364

 BASIS OF AN EXPERT OPINION
 Application of s 60
Facts:
- The evidence of interest in Welsh were the previous representations by Welsh and his mother that
he suffered auditory hallucinations in the past.
Held:
- The admission of those representations as evidence relevant to the credibility of the expert, could
then, via s 60, be used by the jury as evidence that Welsh did in fact get auditory hallucinations.
- S 60 will also apply to evidence forming the basis of an expert’s opinion.
- Previous representations that form part of the material on which an expert bases their opinion are
not hearsay – because the purpose of adducing them is to prove that they were made, not the
truth of what they assert.
 It is also important to consider the judicial discretions, as mentioned in s 136 of

the EA in which s 60 applies. It allows judges to limit the use of evidence if a
particular use might be unfairly prejudicial to a party or be misleading or
confusing.
 S 136 may be used to reverse the effect of s 60 by limiting the use of a previous
representation to its non-hearsay use for which it was admitted.
THE HEARSAY RULE – THE EXCLUSION OF HEARSAY EVIDENCE

 S 59 (1) – Evidence of a previous representation made by a person is not
admissible to prove the existence of a fact that is can reasonable be supposed
that the person intended to assert by the representation.
o the words ‘reasonably be supposed’ means that intention is determined
objectively – see also: s 59 (2A).
o Subsection (1) was originally subjective but was amended following the
Hannes Case. Subsection (1) originally refetted to “the existence of a fact
that the person intended to assert” and the amendmeny added the
underlined words:
o “the existence of a fact that it can reasonable be supposed that the
person intended to assert”.
 S 59(2) such a fact is in this part referred to as an asserted fact.

 S 59 (2A) For the purposes of determining under subsection (1) whether it can
reasonably be supposed that the person intended to assert a particular fact by
the representation, the court may have regard to the circumstances in which the
representation was made.
WEEK 5:
MODULE 5: EXCEPTIONS TO HEARSAY
INTRODUCTION:
 As with most of the exclusionary rules in the EA there are numerous exceptions
to the hearsay rule that, if applicable, will prevent the exclusion of evidence.
 It is important to distinguish between cases where evidence – although hearsay,
is admissible under an exception, and cases where the evidence, although it is a
previous representation, is admissible because it is not in fact hearsay.
 This latter case (evidence that previous representation but not hearsay) is
governed by s 59 of the EA, itself and the considerations from the previous topic.
 Most of the exceptions to the hearsay rule are contained in part 3.2 of the EA,
but others are contained elsewhere such as admissions, in s 81, and evidence of
domestic violence complaints, which is part 4B of the Criminal Procedure Act
1986.
 The ultimate admissibility of hearsay will depend on whether or not the

exceptions applies to allow hearsay evidence to be admitted in spite of the
exclusionary rule.
 Some examples include, but are not limited to:

i. Evidence relevant for a non-hearsay purpose – (s 60)
ii. First hand hearsay: if the maker of the representation is unavailable in civil
proceedings – (s 63).
iii. Business records
iv. Tags and labels
v. Electronic communications
vi. Evidence of Aboriginal Torres Strait Islander laws and customs
EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE

 S 60 governs this area, of which (1) states ‘the hearsay rule does not apply to
evidence of a previous representation that is admitted because it is relevant for a
purpose other than proof of an asserted fact.’
 In other words, it only operates if evidence is of dual relevancy, which entails a
hearsay and non-hearsay purpose. Previous representations that form part of the
material on which an expert bases their opinion are not hearsay, because the
purpose of adducing them is to prove that they were made and relied upon, not to
prove the truth of what they assert.
 Once admitted for that purpose, s 60 will allow them to be used as evidence of
what they assert, a non-hearsay purpose.
 S 136 has a strong correlation to s 60, as it allows judges to limit the use of
evidence if a particular piece of evidence might be unfairly prejudicial to a party or
be misleading or confusions. This section may be used to reverse the effect of s
60 by limiting the use of a previous representation to the non-hearsay use for
which it was admitted.
o S 136 has been used, for instance, where a party has been unable to cross-
examine the person who made the representation and where an expert has
based their opinion on assumptions, rather than assertions.
FIRST HAND HEARSAY

 First hand hearsay is evidence of an out of court statement (previous
representation) where the person who said the statement actually perceived the
fact that they are talking about, rather than hearing it from someone else, and
that out of court statement is being used to prove a fact intended to be asserted
by it.
 S 62 (1) defines first hand hearsay as ‘a previous representation that was made
by a person who had personal knowledge of an asserted fact’.
 (2) defines ‘personal knowledge’ as knowledge that ‘was or might reasonably be
supposed have been based on something the person saw, heard, or otherwise
perceived, other than previous representations made by another person about
the fact’.
 Note: a previous representation will only be hearsay if it satisfies the second
test in s 59, that ‘it is being used for the purpose of proving a fact intended to be
asserted by the representation’.
FIRST HAND HEARSAY: EXCEPTIONS

Having determined that a previous representation is first-hand, the next questions is
whether one of the exceptions in Div 2 applied to make the evidence admissible.
The factors within these sections that are relevant to the admissibility of the
first0hand hearsay are the availability or unavailability of the maker of the
representation, and the quality (reliability/credibility) of the evidence.
 In other words, the person who perceived the previous representation is

either available or unavailable, and whether their evidence is credible.
Unavailability of witnesses: in both civil and criminal proceedings, first-hand

hearsay may be admissible where the maker of the representation is not available
to give evidence – s 63, s 65.
 The circumstances where a person will be considered to be unavailable are listed
in clause 4 of the dictionary of the EA. Some examples include:
i. The person is dead;
ii. The person is no competent to give evidence;
iii. It would be unlawful for the person to give evidence.
First-hand hearsay in criminal cases: two general features may be noted about
the first-hand hearsay provisions applicable in criminal cases – s 65 and s 66.
 First, they are more restrictive than those in civil cases, and second, they are
more liberal for the accused that for the prosecution.
Criminal proceedings where the maker is unavailable: s 65 allows for first-hand

hearsay to be given in criminal cases where the maker of the previous
representation is not available to give evidence.
Representation for which some guarantee of reliability exists:

 finish
Representation made under a duty:

 finish
Representations made when or shortly after and unlikely to have been

fabricated:
- The act provides little guidance re: shortly after, with courts reluctant to specify a
particular time period.
- There is a lot of case/common law regarding this, stemming from ‘fresh in the
mind’ to other definitions.
- Should the courts have of loved the above meaning, they could have added it to
the act, however have not. Therefore, best case law and principle to use comes
from Williams.
- See: Williams v The queen
- Representations should be admitted if made spontaneously during when or
‘under the proximate pressure’ of the events.
- In this case, a 5 day gap was considered too great to be ‘shortly after’.
Reliable representations:
Representations made against the interests of the maker and are likely to be
reliable:
Evidence already given in prior proceedings:

Representations adduced by an accused:
Representations adduced by an accused:
First-hand hearsay in criminal cases where maker is available:
Conway v The Queen [2000] FCA 461
Papakosmas v The Queen [1999] 196 CLR 297
Sio v The Queen [2016] HCA 32

WEEK 6
MODULE 9 – ADVERSARIAL ETHICS – NOT EXAMINABLE
OVERVIEW:
 The ethical rules governing advocated (both prosecutors, and defence lawyers)
are a fundamental part of an adversarial system of justice.
 Their observance is critical to the proper operation of the system and
consequently to the administration of justice.
 DUTIES OF THE PROSECUTOR
 DUTIES OF COUNSEL
MODULE 10 – PRIVILEGES
 A privilege is an entitlement to refuse to divulge information even in court.
 There are a number of privileges both at common law and in the UEL.
 In this module we will deal with:
i. client legal privilege;
ii. confidential relationships privilege
iii. sexual assaults communications privilege
 It is important, however, to be aware that there are other privileges that are
important in legal practice.
COMMON LAW PRIVILEGE

 An important question is whether or not legal professional privilege applies

outside the courtroom to pretrial procedures. In Baker v Campbell, Murphy J
states that it should not just apply to trial proceedings, thus, the privilege extends
to pre-trial proceedings too, such as subpoenas and summons, and pre-trial
discovery.
 S 138A – however, has no grounds to where the person who is providing the
information is not objector.
CLIENT LEGAL PRIVILEGE

 The most important privilege from the perspective of a lawyer is client legal
privilege which prevents disclosure of any confidential communication between a
lawyer and a client made for the purpose of legal advice or litigation.
 Client: is defined in s 117 and extends to bodies or people that engage with
lawyers. It also extends to a lawyer’s employer.
 In Apple v Wily (2002) it was held that a relationship is in reference to if there
was intent of the parties objectively to be in a relationship. There need not be a
formal retainer or cost agreement.
 Confidentiality: this applied to both communications and documents. Under s
117, confidential communication is one that was made in such circumstances
what when it was made the person who made it, or the person to whom it was
made, was under an express or implied obligation not to disclose its contents
whether or not the obligation arises out of law.
 There are two main aspects to note:
i. Only necessary that one of the parties to the communication be under the
obligation.
ii. The confidential status is determined by the circumstances at the time it was
made.
 It need not be a legal obligation, it can also be ethical or moral.
 Case Law:
o In R v Sharpe (2003) it was held that if there is a 3rd party in the presence, the
communication is not confidential. The accused picked up his phone in the
presence of a police officer and made admissions to his solicitor.
o Held: that the communication was not confidential as the police officer was
there. The communication was not privileged.
o In Braham v Mason, it was held that if the accused intended the conversation
with the solicitor to be confidential but could not get away from the presence
of the police, then the privilege could be upheld even though the conversation
was made in the presence of a police officer, it would be held that the
conversation is privileged.
o Documents which have been served in a previous proceeding, even though
not read nor tendered in open court are not privileged as they are not
confidential – Buzzle Operations v Apple Computer (2009).
DOMINANT PURPOSE
 A lot of the time, documents or communications have more than one purpose, for
instance, an engineering company, after the collapse of a bridge, may
commission a report to find out, why the collapse happened, and obtain legal
advice in the event an accident victim wants to seek compensation.
 The company must show that the report was dominantly used for the second
purpose. This is the dominant purpose test – Esso v Commissioner of
Taxation (1999).
 Dominant purpose test: it was held in Sparnon v Apand (1996) that should the
document still be created regardless of the intent to use it to obtain legal advice,
then it is not the dominant purpose. If the two purpose are equal in weight, one
would not dominate the other.
LOSS OF CLIENT PRIVILEGE

 S 121 identifies 3 circumstances under which the privilege may not be claimed,
even if s 118 and s 119 are satisfied:
i. Where the client or party has died, and the evidence is relevant to the
questions of the intents or competence in law – s 121 (1).
ii. Result of not admitting the evidence would be that the court would be
prevented from enforcing an order – s 121 (2).
iii. Communications or documents affecting the rights of a person – s 121 (3).
 Case Law;
o In relation to s 121 (2) – the case of R v Bell (1980) held that even though
the communication was made confidentially for the purpose of obtained
professional assistance, the privilege will not apply where the communication
was part of a criminal or unlawful proceeding, for instance, where a client
sought legal advice in preparation to the commission of a crime, even though
the solicitor was unaware of the purpose of the communication at the time it
was made.
o Even though she was not contacting the solicitor for the purpose related to
her activity, she was preventing a court order. The public interest of securing
the child is more important than the public interest of a client solicitor
disclosure. Thus, even though the information was privileged, it was lost
under s 121 (2).
 Acted in a manner inconsistent w/ the maintenance of the privilege (s122):

o This is the most significant exception to the client legal privilege.
o This privilege belongs to the client, not the lawyer, so the client can consent
to waive the privilege – s 122 (1).
o The client can also act in a manner inconsistent with maintaining the privilege
– s 122 (2).
o S 133 provides two examples of inconsistent behaviour:
i. Client knowingly and voluntarily discloses the substance of the evidence to
another person – (s 122 (3)(a)).
ii. The substance of the evidence has been disclosed with the express or implied
consent of the client – (s 122 (3)(b)).
 In relation to s 122 (1), examples of a waiver may include the disclosure of the
client’s version of the communication with his lawyer. It may be expresses or
implied – Mann v Carnell.
 A client is also said to have waived the privilege if they give evidence of their
version of instructions to a barrister in related proceedings even though she
thought the barrister could still be prevented from giving his version of events –
Beneke v National Australia Bank.
 In relation to s 122 (2), the case of Roads Corporation v Lowe (2010) sets out
two conducts that the applicant relied on to say that the respondent waived their
privilege:
i. The respondent called on expert witnesses – which was held to be true as any
fact or instruction that the witness relies upon for their opinion which are
admissible, can be called for production. It would be unfair to the applicant if
the information that an expert witness used was not disclosed.
ii. The applicant said that the meetings of the expert witnesses were waiving the
privilege as they were improper. In these meetings it was found that the
experts were told to make sure that they had all the same story and spoke with
one voice. Not all meetings, however, do not retain the privilege. Meetings can
be convened for the purposes of lawyers being provided with the information
for their legal advice, still falls under the privilege.
 The accused in criminal proceedings – s 123:

o The effect of this provision is that a party cannot assert CLP where the
evidence is sought to be adduced by an accused in a criminal proceeding –
unless the accused is seeking the evidence from a co-accused.
o This is because the co-accused has the same level of privilege as the
accused.
o The case of Carter v Managing Partner Northmore Hale Davy & Leake
(1995) the accused could not seek evidence even though it would help in the
defence of the accused. This only applies to evidence of the defence, not the
prosecution – R v WIkie (2008).
o It should be noted that s 131A does not apply to s 123 to s 123 is only
applicable to the adducing of evidence at trial by an accused in a criminal trial
proceeding.
 Fraud or Misconduct – s 125:

o Legal privilege is lost when communication was a furtherance to a crime or
fraud or related to an abuse of power. This is because this sort of
communication does not come under the “ordinary scope of professional
employment” – R v Cox and Railton (1884).
o It cannot be the business of a solicitor to further criminal conduct.
Fundamentally, the solicitor advice was gained by fraud, dishonesty will allow
the privilege to take flight – Attorney-General v Kearny (1985).
 Privilege in respect of confidential communications – s 126H:

o S 126H provides a privilege for the confidential communications between
an alleged victim of sexual assault and a counsellor.
o S 127 provides that a person who is a member of the clergy of a church is
entitled to refuse the divulge that a religious confession was made.
o This does not apply if the communications were made for the purpose of a
criminal purpose.
WEEK 7:
MOD 11 - OPINION EVIDENCE
 Opinion evidence is the evidence of a witness that consists of his/her personal
observations.
 Sometimes it is impossible for a witness to express what they saw or heard
unless they are able to give that evidence in accordance with their impression or
by expressing it as a conclusion. I.e. a witness might say ‘the car was going very
fast’ or ‘the car looked like it was out of control’. The law recognised that
witnesses may express their opinions this way under s 76 of the Act.
 Rationale:
It is useful for a witness to tell the decision maker both what they saw or heard and
also what they think about what they saw or heard to assist the decision-making
process. If the decision maker accepts the witness as truthful and reliable, the
opinion may be useful.
 Distinction between fact & opinion:

 The distinction between facts and opinions are one of degree and not nature
and is not defined in the Act. A fact can be described as more concrete and
specific form of a descriptive statement. Therefore, fact and opinion are not
opposites, but rather, different degrees of specificity and description.
 Sometimes they overlap, therefore the court has to distinguish them, such as, if
a witness knew the accused well, their identification of the offender may be
considered fact. If they did not know the accused well, their statement may be
opinion.
 This issue was discussed in R v Marsh, whereby in this case, police thought
they could identify an accused from bank CCTV as they had previously seen the
accused when he was brought in. the accused’s sister was brought in after she
recognised her brother on a media broadcast.
 Was her evidence fact or opinion?
o Unlike in Smith v R (2001) where the police did not know the accused
and had only seen them for brief periods before the trial (where the police
evidence was made inadmissible), the sister was well acquainted with
her brother. For that reason, the appellants sister was able to give a
different category of evidence that of the police officers.
 The distinguishing factor between fact and opinion here was the fact that their
close relationship and the ability to become familiar allowed her to know.
 In Lithgow City Council v Jackson there was a statement from the ambulance
officer to state the injuries sustained from a fall 1.5m onto concrete, was held to
be inadmissible in the HC. It was said that the ambulance officer’s statement
was an opinion in the sense of an inference drawn. An inference that the
accident happened in a particular way – would be an opinion.
 THE OPINION RULE & EXCPETIONS

 Evidence of an opinion is not admissible to prove the existence of fact about
the existence of which the opinion was expressed – s 76.
 It is similar to the hearsay rule in s 59, however, s 77 states the general
exception where the evidence is relevant otherwise than as opinion evidence.
 The opinion rule does not apply to evidence of an opinion that is admitted
because it is relevant for a purpose other than proof of the existence of a fact
about the existence of which the opinion was expressed.
 See: Bank of Valletta v National Crime Authority (1999) as the information
provided by NCA did not identify any particular suspect person. The Fed court
held that, the statement was one of fact, not opinion, and therefore should not
be excluded by s 76. The substance of the evidence has no information that
enabled it to identify a particular offence or suspect.
 Lay witness opinions

 It is hard to prevent witnesses expressing their opinions during their testimony
and this leads to difficulty in eliminating conclusions in their testimonies.
 In Lithgow City Council v Jackson, the court observed that common law
permitted the reception of non-expert opinion evidence when it was very
difficult for witnesses to convey what they have perceived about an event or
condition without using those summarised.
 The usual examples are speed, sobriety, time, weather, identity and bodily
health, such as in R v Whitely.
R v Whitely
Facts:
- Police gave evidence of an accused who was charged with drink driving from inferences that he smelled of
liquor, was unable, eyes were blurry.
Held:
- Due to it being hard to force the witness to say that the accused is definitely under the influence, the court
allowed regard to witnesses expressing their opinions about intoxications.
 S 78 states that:
a. the opinion rule does not apply to evidence of an opinion expressed by
a person if, the opinion of based on what the person saw, heard or
otherwise perceived, and
b. the evidence of the opinion is necessary to obtain an adequate account
or understanding of the persons perception of the matter.
 As such, there are two requirements, s 78 (a) and (b) and the ultimate
criteria for admissible of opinion evidence should be whether it will assist
the trier of fact in understanding the testimony for determining an issue

in fact.
 This is given in Patrick v R.
Patrick v R
Facts:
- Witness was accusing her father of sexual assault. In her testimony she said, ‘her father was drunk and I
said I want to apologise for the things that I have done’.
- The witness thinks that the things that her father was talking about was the sexual abuse.
Issue:
- Whether the witness opinion about what she thought her father mean was admissible?
Held:
- The court held it was not admissible, because the witness was not forming a view of the persons state of
mind/gesture, but rather was giving evidence about the matter, which is required under s 78 (b).
- Since s 78 (b) did not apply, her lay opinion evidence was excluded by s 76.
Impact:
- The following are situations where it may be necessary for opinion evidence, note, the list is not exclusive:
i. Identity of individuals
ii. Age of a person
iii. Speed at which something is moving
iv. Persons emotional state (e.g. anger)
 Even though a lay opinion may satisfy s 78 (a) and (b), it must still survive the judge’s discretion.
 The case of R v Van Dyk 2000, an opinion of the accused looking at girls as a ‘look of wanting’ was
deemed to satisfy s 78 but, because of the prejudicial nature of the evidence in comparison to the
probative value – it was outweighed and discarded under s 137.
 EXPERT WITNESS OPINIONS

There are 3 main concerns with expert evidence;
i. Partiality – there is a risk that the opinion will be influences by a desire to offer
an opinion what accords with the party that called them.
ii. Probative Value – the weight accorded to the opinion may be more than it
deserves since the jury may be influences by perceived qualification.
iii. Reliability – like all people, expert witnesses may be wrong, or worse,
intentionally dishonest.
 S 79 operated to regulate admissions of expert opinions and the expert’s opinion

must satisfy s 79 (1) of which must have 3 requirements:
i. Must possess ‘specialised knowledge’
ii. The specialised knowledge must be based on training and study or experience
iii. The opinions must be based ‘wholly or substantially’ on their specialised
knowledge.
 Specialised knowledge
o The act does not define the term, and it is not possible to have a list of areas of
‘specialised knowledge’ as the list is forever changing.
o This is where case law comes into play. Cases can distinguish the difference
between specialised knowledge and general knowledge, and knowledge and
subjective belief.
o The cases of Alder v Australian Securities and Williams v Australian
Securities observed whether a normal accountant was used as an ‘expert’
opinion for what expected of a diligent director. Specialised knowledge has the
consideration of reliability. Reliability in the sense refers to the professional
recognition of the opinion evidence. The reliability needs to be argued by the
parties and the judge, not the jury. If it is not reliable it is not admissible.
 ‘Must be based on study, training or experience’

o Usually an expert would have the skill, experience and knowledge of the
matter they are giving expert evidence on. This is governed by s 79 (1) as ‘an
expert should be defined as a person who has specialised knowledge, skill,
experience or training about a matter, and generally be able to give evidence
that utilises this special skill, knowledge, training or experience’.
o S 79 (1) however, also includes ad hoc experts, which are witnesses with
specialised knowledge based on experience alone.
o In R v Leung evidence of an interpreter of taped recorded in a different
language were admissible because of the witness’s familiarity of the voices
and languages on the tapes. Although, it is important to consider the extent of
the experience. A really technical field (brain surgery), with no formal

qualification should ring bells for example.
 ‘Wholly or substantially based on that knowledge’

o The expert must explain how the field of specialised knowledge is by a
reason of ‘training, study or experience’.
o In Makita Pty Ltd the expert witness (doctor) was used to explain whether
silica dust could result onto the symptoms of what the plaintiff had. Although
he explained his credentials (study, experience and training) he did not give
the evidence that he was qualified enough to provide anything than a ballpark
figure estimating the amount of silica necessary to contract those symptoms.
He also did not give evidence on how he calculated how much would be
necessary to contract the symptoms.
o Therefore, it was not admissible, as there was an insufficient connection
between a numerical assessment and relevant specialised knowledge.
o The witness can only give opinion evidence on areas within their area of
expertise and the evidence must apply the special knowledge in reaching that
opinion. You need to link the opinion evidence with the specialised
knowledge. They cannot stray to other areas.
Honeysett v The Queen (2014)

Facts:
- At trial, an anatomist had evidence of the physical trails of one of the robbers, as they were similar to the
accused.
- Their opinion was formed after CCTV footage of the robbery. The anatomist said that he made these
comparisons of the body shapes and same way a lay person would but had more thorough knowledge of
the proportions of shapes and human bodies.
Held:
- The court said that s 79 (1) states that there are 2 conditions of admissibility of expert witnesses:
i. The witness must have specialised knowledge
ii. The opinion must wholly or substantially be based on the knowledge.
- The first condition refers to the existence of an actual specialised knowledge. It is defined that specialised
knowledge is that of which without study, training or experience cannot be attained. A person’s study,
training or experience must result in the acquisition of the knowledge.
- The court noted that the matters which the anatomist gave evidence on were not within his area of
specialisation, but rather, subjective impressions of similarities. It was a comparison that the jury
themselves could have made.
- The court also rejected that the anatomist was even an ad hoc expert because he did not examine the
CCTV extensively before giving evidence or anything. Therefore, the evidence was not admissible.
R v Hien Puoc Tang (2006)

Held:
- This case found that facial mapping was not expert evidence because it was not based on the witness’s
specialised knowledge. It was found that in regard to s 79 (1) there was no body of specialisation of based
on facial recognition, even though the doctor had unquestionable experience in facial reconstructions.
- Despite this knowledge, the evidence she gave was not more than just subjective belief, therefore the
second limb of s 79 was not satisfied. Her evidence was not admissible.
 DISCRETIONARY EXCLUSION
 Even if expert evidence meets all the requirements under s 79, it may still be
held to be not admissible because of the prejudicial nature under s 135 or s 137
– R v Dyk 2000.
 Evidence of an opinion is not admissible only because it was about s 80 (a) a
fact in issue or an ultimate fact s 80 (b), a matter of common knowledge. Before
it was argued that experts should be prohibited from giving evidence in relation
to a legal issue or fact. For instance, whether the accused was negligent. This
was because it was ultimately up to the jury of this and an expert opinion may
sway them heavily. But s 80 allows this now (s 80 (a)) and is demonstrated in
William Arthur Forge v Australian Securities (2004). But judges should
express scrutiny of these types of evidence as it may be prejudicial – s 137, s
135.
 Also, in Australian Securities v Vines it was held that expert evidence
answering a question of law will most likely not be admissible because it
operates outside s 79 (2) as it would not be evidence based wholly or

substantially on their specialised knowledge, or it would just be plain irrelevant.
 It is important to note that, s 78A states that, the opinion rule does not apply to
evidence of an opinion expressed by a member of an ATSI group about the
existence or non-existence, or the content of the traditional laws and customs of
the group. Since the Indigenous have oral traditions and laws not wiring them
down, this section enabled them to give evidence. Otherwise it is treated as
opinion evidence or hearsay.
 COMMON KNOWLEDGE
This type of evidence is usually a waste of the courts time. But sometimes, parties
call in experts to confirm common knowledge – Cadbury v Darrell Lee.
It is important to note that court documents are admissible. The onus is on the
party wanting to disprove the fact asserted in the court document/statement.
MOD 12 – IDENTIFICATION & UNRELIABLE EVIDENCE

OVERVIEW:
 One important type of inherently unreliable evidence is identification evidence.
For such evidence, there are rules of exclusion as well as rules about warnings to
be given to the jury regarding this evidence. There are rules governing the
admissibility of identification evidence in the EA.
 Their effect is to prefer evidence of identification that are made after a suspect is
chosen from police line-up. Where appropriate identification made in other
contexts (including by use of photographs), may be admissible.
 The idea behind the rules is to try ensuring that only the most reliable
identification evidence is received. It is only essential to understand the
warnings that should be given to the jury in relation to identification
evidence.
WEEK 8: RIGHT TO SILENCE, POLICE QUESTIONING AND ADMISSIONS
RIGHT TO SILENCE
 An accused person cannot be compelled to give evidence. This stems from the
notion of privilege against self-incrimination – s 128.
 No one is obliged to give to give themselves away, and the accused may instead
choose to remain silent testing the strength of the prosecution’s case.
 S 20 of the EA dictates what comments can be drawn from the silenced accused.
Subsection (2) states that the judge or nay other party (other than the
prosecution) may comment on a failure of the accused to give evidence.
Although, unless the comment is made by another accused in the proceeding,
the comment must not suggest that the accused failed to give evidence because
the accused was, or believe he/she was, guilty of the offence concerned.
 See: Azzopardi v R - which is the leading case of what comments can be made
from silence. No comments are to be made to infer the guilt of the accused.
Silence also cannot be used to fill in the caps of the defendant’s evidence.
 Under s 89 A there is a limited right to silence to a certain extent.
o If police want the jury in the proceedings to draw an adverse inference from
the accused silence, the following preconditions must be met:
i. Police officer must give the suspect a caution.
ii. If person is accused of an indictable offence and the person has been properly
cautioned and has been given a reasonable opportunity to talk to a lawyer.
iii. The judge can then tell the jury to draw any inferences that is deemed proper
from the accused’s failure to say something.
Sanchez v R (2009)
Facts:
- Sanchez was charged with carrying drugs at an airport and he exercised his right to silence.
- During trial he said the bags were not his and he was carrying them for someone else.
Issue:
- Whether the right at general law/ s 89 of the EA was applicable and whether the trial judge’s direction to
the jury infringed the accused’s right to silence?
Held:
- A right to silence direction should be given at the time evidence is given that an accused has exercised
the right and the judge should give the direction to the jury that they are not to draw an adverse
inference.
- S 89 however, has not been breached because it only applies to the drawing of inferences from silence
in response to questioning.
Weissensteiner [1993]
Facts:
- Where the prosecution had proved its case to a certain standard, the judge may direct the jury that if
facts find proven support, an inference of guilty may be made and there are certain things which are
reasonable to expect the accused would know, and would disclose if they were consistent with his or her
innocence, the jury may take such silence into account, in deciding whether to draw the inference.
- Essentially, a jury could be directed that in cases where an inference of guilty was open from the whole
of the prosecution case, a defendant’s failure to testify about matters peculiarly within the defendant’s
knowledge could make is easier for the jury to satisfied about the correctness of the inference of guilt.
ADMISSIONS
 An admissions is an assertion against one’s own interest. Evidence of
admissions, especially the accused is very powerful evidence. The admissibility
of this evidence is strengthened due to how unlikely it is for someone to make a
self-incrimination admission.
 However, admissions can be unreliable especially in cases of duress.
 Important rules have been created under the EA to ensure the reliability of
admissions. Part 3.4 contains most of the rules related to the admissibility of
admission. While admissions can occur in the witness box, this is not the kind of
admission dealt with in Part 3.4. This part of the Act deals specifically with out of
court statements.
 The Act defines an admission as a presentation that is, ‘made by a person who is
or becomes a party to a proceeding (including a defendant in a criminal
proceeding) and adverse to the person’s interest in the outcome of the
proceeding’. This encompasses a broad interpretation, therefore s 81 provides
that, hearsay and opinion rules do not apply to admissions.
 As long as the admission is relevant it will be admissible unless in reference to
some other exclusionary rule.
ADMISSIONS CONTINUED…
The first ting to consider is that admissions are previous representations, and are
hearsay, as it is proving the truth of what is asserted in it. Therefore, they will not get
in unless there is an exception under s 81. An admission is a statement against
one’s own interest as defined in the Dictionary of the EA.
Remember to go through the steps of admissibility:

i. Is it relevant?
ii. Does an exclusionary rule apply? Hearsay or opinion?
iii. Does an exception apply under s 81?
iv. Do the further exceptions apply under s 82 – 86.
v. Does a discretion apply under s 90?
At this point, even if it satisfied all the above-mentioned factors, a discretion may still
be applied under s 90. Under this section, the judge has the discretion to throw out
unfair confessions, however the issue still remains what ‘unfair’ means.
Under s 139, if there has been a failure to caution a person properly, and the
accused make’s an admission, the admission will be deemed to be illegally obtained,
and the court can declare the admissions to be unfair under s 138 or s 139.
Exceptions:
 Under s 82, only first-hand hearsay or admissions applies, not second-hand
hearsay.
 Under s 84 the court has to be satisfied that an admission was not made under
a threat, violence, oppression or degrading conduct.
 Under s 85 this section applied only to criminal proceedings, whereby an
admission is made by a defendant to an investigating official, and was sort of
confided to police questioning, this is because we know that when in the
company of police, the accused is particularly vulnerable. This section also
includes any influences such as duress or inducement and is additional to s
85.
o Basically, wrongfully confessing due to influences.
o For instance, promises to look after the accused, ‘we’ll do something for
you’. A false confession must be given, that is the distinction from s 84
and s 85.
 Under s 86, if an accused has made an oral admission, then a document
acknowledging the admission will be allowed unless it is signed, initialised or
otherwise marked.
EXLCUSION OF CERTAIN ADMISSIONS

 S 81 provides the exclusion of evidence of admissions that is not first-hand,
meaning, only first-hand evidence will be an admission. Second hand admissions
will still be covered by the hearsay rule.
 Admissions not admissible as against 3rd parties: s 83 operates to restrict s
81 admissions which are neither hearsay or opinion may still be admissible
against 3rd parties.
 Exclusion of admissions influences by violence and certain other conduct:

o s 84 provides that: ‘evidence of an admissions is not admissible unless the
court is satisfied that the admission, and the making of the admission, were
not influenced by, violent, oppressive, inhuman or degrading conduct,
whether towards the person who made the admission or towards another
person, or a threat of conduct of that kind’.
 The above section is exemplified in the case of R v Zhang [2000], as the
evidence was accepted by Simpsons J at [40] as amounting to oppressive
conduct, was the cumulative effect of being offered witness protection in return
for co-operation, in the context of being confronted with only two alternatives (co-
operate with the police or be charged with murder), together with a threat of
physical violence and, finally, being told that he would not be given any further
opportunity to cooperate with the police after the detective had left the room.
 Where there a number of accumulate factors that cause the admission to be
made, of which the conduct on the part of the police is only one, the evidence is
inadmissible if the Crown fails to negate that conduct of the police as one of
those factors.
 Voir dire (procedure for determining admissibility of evidence) is often used in
assessing preliminary questions such as competence, reliability of admissions,
illegality or impropriety.
 Admissions by criminal defendants in the presence of investigators:

o S 85 focuses on the reliability of the admission, especially the vulnerability of
people being questioned by investigating officials.
o For instance, subsection (1) (b) expresses, ‘as a result of an act of another
person who was, and who the defendant knew or reasonably believed to be,
capable of influencing the decision whether a prosecution of the defendant
should be brought or should be continued.’
o Under these subsections, once the rehabilitation of the evidence is brought

into question, the onus is on the prosecution to show that the evidence is in
fact reliable.
 Documented Admissions:
o S 86 provides that a document prepared by or on behalf of the officials is not
admissible to prove the contents of the question, representation or response
unless the defendant has acknowledges that the document is a true record of
the question, representation or response.
o The acknowledgement must be made in signing, initialling or otherwise
marking the document.
DISCRETIONARY EXCLUSION OF ADMISSIONS

 Pursuant to s 90, ‘in a criminal proceeding, the court may refuse to admit the
evidence of an admission or refuse to admit the evidence to prove a particular
fact if, the evidence is adduced by the prosecution and having regard to the
circumstances in which the admission was made, it would be unfair to an
accused to use the evidence’.
Em v R [2007]
Facts:
- Em was convicted of murder and a firearm offence as a result of a home invasion. The confessions
were recorded by a police officer in a public park (undercover) and had not been cautioned.
- In determining whether the admissions are reliable because they are adverse to the interests of the
defendant, an argument was made that he defendant believed that they were inadmissible against him
because they were not recorded, and therefore not again interest. It was rejected because, although
inadmissible, such admissions would be known to be likely to excite police interest and provoke other
police endeavours to prove the case against him, by obtaining a warrant to use a listening device
covertly, and thus remained adverse to interest.
Judgements:
- Gleeson CJ, Heydon JJ – indicate that a party may rely upon s 90, regardless of what other sections
the accused also relies upon – at [42] and [196].
Held:
- The majority (Gleeson CJ, Heydon, Gummow and Hayne JJ) took the common law position that
reliability was an important but not exclusive factor.
- They held that the absence of a full caution (including the warning that anything the suspected person
may say be used in evidence) did not, in the circumstances of that case, render unfair the use of
admissions made in the circumstances of that case.
ADMISSIONS BY SUSPECTS
 An admissions made by an accused person during police questioning is not
admissible unless, a tape recording is available in the course of the interview is
readily available – CPA s 281 (a), or the prosecution established a ‘reasonable
excuse’ as to why a tape recording referred to in the above provision could not be
made (iii) or (b) the prosecution establishes that there was a reasonable excuse
as to why a tape recording referred to in a paragraph (a) could not be made.
 ‘Reasonable excuse’ includes:
a. A mechanical failure
b. The refusal of a person being questioned to have the questioning
electronically recorded, or;
c. The lack of availability of recording equipment within a person in which it
would be reasonable to detain the person being questioning.
 The hearsay and opinion rules do not prevent a tape recording to be admitted
and used in proceedings.
Class Notes:
Right to Silence
 No one is able to coerce you to speak.
 You always have the ability to stay silent.
 It is not just the right to say nothing – it is also the right to not have an adverse
inference drawn from that silence.
What is the rationale for this right?

 Effectively, in the absence of the eight to silence it would effectively reverse the
burden of proof. In the absence we would also effectively remove the standard
of proof required by the prosecution. If there was no right it would be achieved

more easily once we start placing any affirmative duty on the defendant.
Recent NSW amendments re: right to silence. Do you think the erosion of the
principle is justified? What does it seek to achieve?
 The amendments referred to are s 89 A ‘Evidence of silence in criminal
proceedings for serious indictable offences.
 This arose due to a case concerning bikie gangs where they essentially
exercised their right to silence and ‘said nothing’ until the group/gang were able
to gather together ‘get their story straight’ etc. until trial.
 This amendment gives arise to the issues as mentioned above – particularly,
can draw unfavourable inferences.
 See also: LEPRA Part 9
What is an admission? Are they excluded by the hearsay rule?

 Is not synonymous to the notion of a ‘confession’
 An admission is an assertion/any statement which is against one’s own
interest.
 See ss 81 – 86.
 Per s 81 – the hearsay and opinion rule do not apply to evidence of
admissions. Per s 82 – only for first hand or documents.
In what circumstances are admissions excluded from evidence?

 Evidence that is against a third party – e.g. co-defendants.
 And evidence that is influenced (low threshold) by violence or other conduct –
where violence is oppressive, inhumane conduct etc. See: s 84.
 See: Crown v Zheng – court characterised the fact pattern as one where the
conduct of the police was designed to oppress the accused. Where
oppressed was a way of over using power.
 Evidence of silence re: s 89 – states that an adverse inference cannot be
drawn from silence.
 S 89A
 Ss 90 &139 – discretion to exclude evidence
Consider the cultural and linguistic differences between the way some Aboriginal
people use English and the English used by non-Aboriginal Australians. What justice
issues can arise from these differences and how could they be ameliorated?
 The notion of ‘Aboriginal-English’ has the perception that ATSIP prefer to not
use binary responses such as ‘yes’ ‘no’ – rather they prefer to repeat the alst
part of the sentence said to them in a statement.
 S 29 – there is an exception where people are able to give evidence in
‘narrative’ form.
WEEK 10
Mod 14. TENDANCY AND COINCEDENCE EVIDENCE
Mod 15. CHARACTER EVIDENCE
INTRODUCTION
 Evidence of the character, conduct, representation or tendencies of a person may
be relevant in a number of ways, either to the credibility of the person or to a fact
in issue at trial.
 The first of these situations is dealt with by the credibility rules in part 3.7 of the
EA. The tendency and coincidence rules in part 3.6 of the Act only deal with
evidence being used in the latter way.
 Similar fact evidence is evidence that on a previous occasion a person (the
accused or the defendant) acted in a similar manner. The issue rises mostly in
sexual offences against children. It is when the prosecution wants to tender

evidence that the accused has been previously convicted or accused.
 This is broken up into 2 categories:
i. Tendency evidence
ii. Coincidence evidence
 These categories are in the broader category of ‘similar fact evidence’. The only
difference between these are the different principles for admissibility. The
problem with this evidence is while it provides probative value, it works
substantially in prejudging against the accused.
 Usually, similar fact evidence is used to prove the fact in issue, but sometimes it
gives background information such as relationship and connection to the crime.
CASE LAW:
Makin (1894)
- A husband and wife were charged with killing their babies
- The prosecution sought to tender evidence of 12 other bodies of babies found on the premises and
accused them of adopting the children for money, then killing them.
- It was held that it is admissible if it is relevant to a fact in issue. If it provides nothing, then it is deemed
useless.
Hoch v R (1988)
- Similar fact evidence was held to only be admissible where there is no other rational view of the evidence
consistent with innocence/
- The basis for this admission is basically its possession of a particular probative value that bears no
explanation other than the inculpation of the accused person in the offence charged.
Pfenning v The Queen (1995)

Facts:
- Here, a boy was killed, and his bike was left near a cliff. The accused was seen driving a van to the cliff.
- The evidence in question was that a year later, the same accused was convicted of driving the same van up
to a cliff and raping a boy and forcing him to leave his bike near the cliff, as the boy escaped.
Issue:
- The prosecution tried to use this evidence to prove the first case.
- It was held, however, that it was not admissible
- This sort of similar fact evidence cannot be accepted if it only shows that he accused was likely to have
committed the offence or had the means/mindset to.

- It must show that the evidence must possess ‘a strong degree of probative force’ and the evidence must
clearly transcend the prejudicial effect of mere criminality of propensity.
- Very often, propensity evidence is received when there is a striking similarity between different offences.
- Basically, this means that for similar fact evidence to be admissible is that there is no reasonable
objective probability that an innocent explanation can support the fact that the accused is not
guilty. The evidence must be ‘strikingly similar’ with ‘unusual features’ and ‘system or pattern’.
- The probative value of the evidence must lie in the improbability of witnesses giving account of happenings
having similar degree without the accused being the common ground.
- Prejudicial effects are based on the adverse effect on the mind of the jury.
- Therefore, if the prosecution case was about whether the accused abducted the boy for sexual assault, it
would not be admissible (because of the signature commonalities) – but for a murder case, it was not.
Tendency and coincidence rules are set out in s 97 and s 98 respectively.
 Tendency is defined at ‘the evidence of a character, reputation conduct or

tendency of a person to prove that they had a tendency to do an act in a
particular way’, i.e. sexual assault cases.
 Coincidence is defined as ‘the occurrence of 2 or more events which are
tendered to prove that, having regard to the similarity in the cases, it is
improbable that the events occurred coincidently.’ S 101 states that (a) there
must be significant probative value, and (b) the probative value must outweigh
any prejudicial effect it may have on the accused. S 101 is harder to satisfy than
s 137 because of s 101(b) – but, we need to determine the meaning of ‘significant
probative value’.
Note: if the party intends on adducing similar fact evidence, they must give notice
unless in special circumstances under s 110.
 Significant probative value: s 97 (1)(b) and s 98(1)(b) required the similar fact
evidence to have significant probative value.
 In R v PWD:
i. In assessing the probative value, the court need not take the evidence at its
highest.
ii. There is no need for a similar pattern or striking similarity between the
evidence and the accused act.
iii. Whether there is a risk of unfair trial. This is done with the judge’s value
judgement. He must compare the probative value with the risk of an unfair trial.
iv. If it is accepted under s 101, then the same goes for s 137. No need to use
both tests for judicial discretion.
Wallis v Tasmania (2007)

- This case was concerned with the notion of striking similarity.
- This is when there is sound basis of inferring that because of the improbability that each would have
occurred by coincidence, the evidence was admissible.
- Note: s 101 applies for coincidence and tendency evidence.
R v Ellis (2003)
- S 97, 98 and 101 – does not adopt the ‘other rational view test’.
- The judge said that you should use the meaning identified in Pfenning, ‘only if there is no such view that
can safely conclude that the probative value of the evidence outweighs the prejudicial effect’.
- Always apply s 101 as a rule, not only a discretion.
- There needs to be a balancing exercise between probative value and substantially outweighing.
CGL v DPP
- This case outlined when similar fact evidence can be admitted. There were many counts of evidence that
was sought to be admitted:
o Count 1 – in 1988-90, accused rub the vagina of a 10-12-year-old complainant.
o Count 2 – for about 10 years, the accused was the step father of complainant and sexually
assaulted her. She was aged 13-18.
o Count 16 to 18 – in 2001, the accused was the step father of complainant 3 and he asked her to
rub her ass while he pleasured himself, she was ages 10-12.
o Count 19 – in 2004 he followed the 8-year-old complainant (4), to a bathroom at a school dance
that he organised and rubbed her vagina.
- The prosecutor tried to rely on s 97 (tendency rule) and s 98 (coincidence rule) to include the above.
COINCEDENCE EVIDENCE
Under s 98 (1) (a) – the prosecution must give notice.
 The first one was to prove that CGL acted in a particular way (touched young
females) and also to prove his state of mind (sexual attraction to young females).
 The second notice identified the particular state of mine. These are questions you
have to ask for coincidence evidence:
i. Are the similarities in the specified events such that it is improbable that
the events occurred coincidentally?
ii. If so, would the evidence tend to prove that the accused did the specified
act or had the state of mind (if the state of mind is relevant to the fact in
issue).
iii. If so, does the evidence have significant probative value?
iv. If so, does the probative value substantially outweigh the prejudicial
effect?
 The prosecutor identified similar events in, the young ages of the girls, the
relationships with the mothers, rubbing of the vagina, body massages, and
argued this evidence would be probative to find the accused acted towards the
young women in a sexual manner, that he had sexual attraction to these young
women and he acted voluntarily and intentionally.
 However, it was held that the similar fact evidence was insufficient as the
‘particular acts’ were too general. Rubbing of the vagina and touching are
basically acts to do with sexual assault. These was nothing specific about it. The
only similarity was the fact that he has relations with mothers of the complainant
(2 and 3) but no similarity in the actual offending.
TENDENCY EVIDENCE
In accordance to s 97 (1) (a) the prosecution has 6 notices:
i. First – that the accused had the tendency to act in a particular way –
(formed relationships with adult women with young girls to get close to
those girls).
ii. Second – he had the tendency to act upon his sexual attraction to girls
aged 8-13 and had the state of mind – (sexual attraction to young
females).
iii. Third – he had the tendency to groom young girls whose mothers he was
in a relationship with by engaging them in a body massage.
iv. Fourth – tendency to act in a particular way – (masturbate in front of
young girls) and the tendency to being sexually aroused at the thought of
young girls.
v. Fifth – acted towards and have sexual attraction towards his step
daughter.
vi. Sixth – the tendency to act in a particular way – (the rubbing of the vagina
of young girls).
The evidence was not admissible. The judge found that there was significant
probative value – (s 101) (1). But in regards to s 101 (2), the probative value did not
‘substantially’ outweigh the prejudicial effect it might have in the trial for the other
counts. S 98 (1) is concerned with coincidence evidence, that 2 or more events
occurred should be admitted in order to prove that a person did a particular act or
had a particular state of mine. The basis of admissibility here is that by reason of
similarity, it is improbable that the events occurred coincidentally.
DEFICIENCIES IN TENDENCY EVIDENCE

 S 97 is concerned with the admissibility to prove that a person:
o Has or had a tendency to act in a particular way.
o Has or had a tendency to have a particular state of mind.
 It was held that the tendencies expressed in the second notice were too general.
The 6th notice was good, but it was too general of the nature of sexual assault, so
it was not particularly distinctive.
 Unlike s 98 (1) – s 7 (1) it does not identify the basis on which evidence becomes
admissible to prove a relevant tendency.
 The degree of specificity with which the similarities must be identified the more
likely the evidence will be probative of a tendency. The relevant acts needed to
show some sort of underlying unity. But, for s 97 there need not any striking
similarities.
 There needs to be a consideration of a possible collusion and corruption between
the applicants. But, 2 or more different applicants who give similar evidence
makes it improbable if they did not collude, that they were lying.
 Under s 97 (1), the closer the particular similarities, the more significant probative
value. If the evidence supplied by the complainants were sufficient similar and
sufficiently unusual then they would have significant probative value.
 The evidence was not admissible, as some of the dangers involved in a similar
fact evidence include – per, Pfenning:
o Created suspicion on the accused – (undermines the concept of innocence)
o Juries are too ready to believe that behavioural patterns are consistency
o Trials would be lengthened
o Bias against the accused, there is a tendency of the jury to punish the
accused for previous acts.
 The forbidden chain reasoning (propensity reasoning), the strong over tendency
to believe that he defendant is guilty of the charge because they are likely to do
such acts, found in BRS v R.
IMPORTANCE OF SIMILAR FACT EVIDENCE

 While it is of little value when it comes to predicting whether a particular individual
will commit an offence, it can be used for when the criminal act has been
committed and whether the accused has the criminal intent.
 it proves that the accused has the capacity for engaging in the relevant
criminality. But you have to decide its relevant by way of propensity (tendency),
reasoning or probative value.
 Similar fact evidence may be admitted for just propensity reasoning (held by the
majority in Pfenning). There is no reason to believe that predictions stemming
from similar fact evidence assume a different role in our reasoning from
predictions stemming from observable facts. This sort of evidence places the
accused in a small class of the community that are willing to achieve their ends
via the means now alleged and hence, fits the accused.
 We know that people are not usually likely to want to commit a crime, so we try
and put the accused in this small niche category of human – this is why similar
fact evidence is so damaging.
 In the case of Straffen, the accused was admitted to murdering 2 girls and was
on charge for the murder of another. Here are the similarities between all 3
killings:
o Young age of the girls
o Manually strangles
o No sexual assault
o No evidence of struggle
o No attempt to conceal the bodies even though it would have been too easy to.
 It was held admissible as, it showed that the accused had the propensity in the
most unusual kind, he was a strangler of small girls.
 The usual nature of the propensity gave such a high probative value and
therefore it was admitted. The preparedness to kill young children was so rare.
The tendency paradigm includes:

i. Straffen committed 2 murders on similar victims in a similar way
ii. He therefore has the propensity to act in that way
iii. Therefore, likely to have committed the offence in this occasion.
The coincidence paradigm includes:

i. Three murders were committed in a similar way – (unusual way)
ii. It is therefore likely that they were done by the same person
iii. Straffen admitted to 2 murders
 Usually, the mens rea is best for similar fact evidence admissibility, not actus
reus. However, to assume that similar fact evidence must inevitably prejudice the
jury discounts the effectiveness of cross-examination and the judge’s caution.
RELATIONSHIP EVIDENCE
 This is used to place the charged offence in the proper context and makes the
complainant more comprehendible. It is usually used in sexual assault cases to
explain the lack of complain by the complainant or lack of resistance. It serves to
buttress the credibility of the complainant.
 S 101 does not apply for the establishment of a relationship – Roach v The
Queen (2011). Although s 135 and s 137 will apply (where the judge gives
directions about the appropriate use of the evidence).
 Relationship evidence is argued to be even more prejudicial than similar fact
evidence as it shows a predilection (fondness, or partiality) towards a particular
individual. Guilty fact evidence is usually for sexual fondness.
 In R v Ball, it is established the incestual relationship between a brother and
sister who shared a double bed in a two-bedroom house. Since this is relevant to
a fact in issue – it is governed by s 98, 99 and 101.
 The ‘res gestar’ doctrine states that, where evidence is intertwined with the
relevant facts, it is admissible.
 See the case of O’Leary v R (1946) – where previous drunken assaults prior to
the killing was admitted providing a full and proper context for the events that
were in issue.
CHARACTER EVIDENCE
 Character evidence is a type of tendency evidence. The accused can always give
evidence in respect of their good character. The prohibition against evidence of
prior convictions extends to any evidence of an accused person’s bad character.
 A part from some exceptions, the prosecution cannot adduce any evidence at
attack the character of an accused person.
 There are 2 exceptions to this rule:
i. Where an accused person adduced evidence of his own good character, the
prosecution can bring evidence to rebut it – s 110, 104.
ii. Where an accused person attacks the character (in terms of truthfulness) of
any prosecution witness, he leaves himself open to an attack on his character
– s 104.
 S 110 allows the accused to give evidence of his or her good character. Under
this section, the hearsay, opinion, tendency, and credibility rule do not apply to
evidence adduced by a defendant to prove (directly or by implication) that the
defendant is a person of good character. If the accused adduces evidence about
good character, then this enables the prosecution to bring evidence to rebut the
evidence.
 hence, the accused can lose character shield, and therefore, such evidence
rebutting the presumption can have significant probative value.
 S 104 allows the prosecution, with the court’s leave, to cross-examine an
accused (in relation to their credibility, which could include adducing evidence of
prior convictions) if the defendant has adduced evidence that a prosecution
witness has a tendency to be untruthful.
Week 11: Questioning Witnesses & Credibility

Overview –
Questioning witnesses revolves around how witnesses may be questioned in court,
in particular, examination in chief (the questioning of one’s own witnesses) and
cross-examination (the questioning of the opponent’s witnesses).
QUESTIONING WITNESSES
Examination in chief, cross-examination and re-examination: there is a definite
process for adducing evidence from a witness:
i. Witness takes an oath to tell the truth
ii. The witness then gives their account (called an examination in chief)
iii. Witness is then cross-examined
iv. Sometimes the witness is then re-examined
The examination in chief is usually conducted by the party who summoned the
witness and therefore are ‘friendly questions’ and the witness recounts their version
of the events by answering questions. This is not to force the witness to stay on the
legally relevant factors.
Under s 37 of the UEA there is a prohibition against leading questions which is

defined in the dictionary:
 Directly or indirectly suggesting a particular answer to the question, for
instance, ‘did the accused rob the bank?’
 Assumed the existence of this before the questions were asked. For
instance, ‘when did you stop beating your wife’, when there was no evidence
to prove that he did beat his wife.
You cannot ask types of questions (as above) unless you give leave to the court to
do so – s 37 (1)(a), or there was no objection – s 37 (1)(c), or it is not in regards to a
matter in dispute – s 37 (1)(b), or the witness has special knowledge and the
questions asked for hypothetical reasons – s 37 (1)(e.), or the person is a child – s
29.
The court understands that sometimes a witness may forget how certain events
happened (some matters take years to get to the trial stage) and with leave of the
court, they can use documents that record statements about the event to refresh
their memory, which is pursuant to s 32. But generally, leave will not be granted
unless:
i. The witness cannot recall the event without using the document
ii. Document was made when it was fresh in the witness mind – R v Van
Beelee 1972. ‘Fresh’ is in relation to question of fact – not time.
iii. The document was accurate when it was made.
Police officers do not need leave. They can have access if the court gives leave, the
other party is allowed to read it, but it may not necessarily be tendered for evidence
– s 35.
 In Solomon v R it was held that statements made by police officers 13 – 31 days
after the event was not ‘fresh in the mind’.
 In R v Briggs it was held that a statement made 2 days and 9 hours after the
event was ‘fresh in the mind’ and so the witness could look at it before giving
evidence.
Sometimes, witnesses give damaging or unfavourable evidence, and s 38 allows a
party to cross-examine their own witness when they give unfavourable evidence.
 In Hadgkiss v Construction Forestry Mining and Energy Union ,
‘unfavourable’ means that the evidence detracted from the case of the party
calling the witness.
 S 192 allows the court to ‘give leave, permission or direction on such terms the
court thinks fit’.
CROSS EXAMINATION
The purpose of this is to reduce the weight of, or importance of, the testimony of a
witness called by the opposing party, by pointing out flaws or contradiction in gather
evidence given. Due to its forceful and confrontational nature, s 42 has let some
types of questions that are disallowed.
These are: (s 42)
(a) Misleading or confusing
(b) Annoying or harassing
(c) Put to the witness in a manner that is belittling
(d) On no basis other than stereotype
 In Libke v R (2007), the judge is to control the cross-examination and the cross-
examiner is entitled to ask confined questions and to attack the credit of the
witness.
 The cross examiner can put prior inconsistent statements to the witness and try
to discredit them, but sometimes the witness can deny making the initial
statement.
 The party is prohibited from adducing the inconsistent document unless giving it
to the witness to see first – Anlett v R (2006). This is also given under s 46 which
allows the court to give leave to recall a witness when a party adduces evidence
on a matter which was not cross-examined which contradicts the evidence given
by the witness – Brown v Dunn.
Re-examination: this is only allowed for matters arising from cross-examination. It

cannot be used to raise new issues, it is not an opportunity for a witness to give
further evidence. It is usually used for clarification of ambiguity.
Re-opening cases: a party is meant to present their whole case before proceedings
to the next stage. There are so split cases. Re-opening cases means adducing
additional evidence after a party has closed the case. Some circumstances involve.
i. A witness has been recalled giving evidence on a matter that is a subject

of contradicting evidence.
ii. Evidence related to an issue that was overlooked (property that was stolen
belonging to a certain person).
iii. Evidence could not be obtained with reasonable diligence at the time.
CREDIBILITY
 S 102 of the EA states that evidence about a witness’ credibility is not admissible.
 S 101A defines credibility as ‘evidence relevant only because it affects the
assessment of the credibility of the witness or the person.
 S 103 states that credibility evidence can be adduced in cross-examination of a
witness if the evidence could substantially affect the assessment of the credibility
of the witness. This evidence tens to prove that the witness made a false
representation when a witness was under the obligation to tell the truth. Pursuant
to s 103 (1), the evidence must have the potential to have a real bearing upon the
assessment of the appellants credibility.
 Evidence of corruption of a police officer would have substantial probative value –

R v RPS.
 Where a representation has been made and the person who made it is unable to
come into court then pursuant to s 108A, credibility evidence can also be
adduced against them.
Special situation of prior conviction: the most damaging evidence is a prior

conviction of a previous criminal offence. This is not admissible as reflected in s 102.
This is because it is difficult to imagine a more damaging evidence to a jury in a trial
beyond the direct and indirect circumstantial evidence and introduced a risk of unfair
prejudice – Phillips v R (1985).
 The sections which provide extra evidence against this type of evidence is s 104
and s 108A.
 S 104 will apply the same as s 103 only to evidence which could substantially
affect the assessment of credibility of the defendant.
 The combined effect of s 103 and s 104 are that where the accused is giving
evidence, they can be cross-examined without leave being required of the court,
where evidence could substantially affect their credit in matters to whether the
accused:
i. Is biased
ii. has a motive to be untruthful
iii. has made a prior inconsistent statement
iv. is unable to be aware of or recall matter which their statement relates.
This section aims to discourage an accused from making gratuitous attacks n the
prosecutions witnesses. In R v El-Abruzzi, the court made the following statements
about the discretion to grant leave for re-examination. Even though there is a right to
stress the credibility of the accused with the prior convictions, the evidence must be
done so to attack the credibility of the accused, not in regards to his guilt (which is
something that the jury may think).
The essential question is one of fairness, the judge is to consider the fact that
evidence of prior convictions are rarely admitted and are more likely to be admitted
where the conviction related to a matter that is different to the charged offence and
whether the accused has launched a gratuitous attack on the credibility of the
prosecutions witness.
The finality rule, and exceptions to the rule: there are a large range of
circumstances where credibility evidence is admissible, especially when the witness
is not the accused. Pursuant to s 106 (2), leave is required if the evidence to be
adduced shows that the witness:
o was either bias to has a motive to be untruthful
o has been convicted of an offence
o has made a prior inconsistent statement
o is unable to be aware of matters to which their evidence related
o has made a false representation while under an oath to tell the truth
 Bias has been interpreted as any matter that may make a witness hostile to the
opponent or favourable to the party that has called them – Nicolls v R.
 In Toohey v Metropolitan Police Commissioner (1965) it is possible to call
upon evidence of an oculist (optometrist) to the effect that the witness could not
see anything at a greater distance of over 20 yards. The witness gave evidence
that he could see 50 yards away.
Re-establishing credibility: when the credibility of a witness has been trashed, it is

possible to restore it under s 108 which provides that the credibility of a witness can
be resorted during re-examination. This section states that the credibility rule does
not apply to evidence adduced in re-examination of a witness.
 S 108 (3) provides 2 further exceptions where credibility evidence is admissible.
These both relate to previous representations or statements. But, if these
statements cannot repair the credibility damages, it would not be granted.
 In R v MBD the credibility of a sexual complainant was accused after the
complaint was made 6 months after the alleged incident. The complainant was
accused of a prior inconsistent statement for the purpose of rebutting an attack
on a witness’ credibility, but the timing of this prior statement is very important. It
was held that statements made to the mother and friends 6 years after the
incident after realising the complainant could be potentially in the same situation
– were admissible.
GOOD CHARACTER EVIDENCE

The accused is the only person who can introduce this type of evidence under s 110.
This is done through the witness’ own testimony. But the prosecution can the lead
the evidence to show the opposite. When good evidence is given, it goes for their
credibility, that they are unlikely to commit the offence, but it is necessary for this to
be done deliberately. S 110 requires a subjective intent to raise good character
evidence.
Credibility evidence given by exerts on credibility: another exception to when

credibility evidence can be admitted is when it is given by a person with expert
knowledge. S 108 C states that the areas of expertise that can quality a witness in
this regard include specialised knowledge of child development and child behaviour.
It works in a similar way to s 111. In Ewin v Vergara, it was stated that the exception
is derived to evidence dealing with the capacity of a witness to give credible
evidence to be called as to the behavioural factors which could assist the court’s
understanding of the capacity of the witness to give credible evidence.
CREDIBILITY
Credibility evidence refers to ‘the credibility of any part or all of the evidence of the
witness and includes the witness’s ability to observe or remember facts and events
about which the witness has given, is giving or is to give evidence’ – Dictionary in
the EA. Credibility evidence is not admissible – s 102. There are a few exceptions.
 The credibility rule can be considered within a dual purpose, such as credibility
issue or a fact in issue, however, credibility only applies where the issue is only
credibility, and not for a dual purpose.
In enhancing the credibility of a witness, this may happen in a re-examination of a

witness – s 108. For example: if Flossy was not wearing her classes after a chief
cross-examination, there is the chance of re-examining her, as should could then be
wearing contact lenses. An example of s 108 (3)(b) would be, ‘I was robbed’. The
person then comes into court is only concerned about what is presently being told. If,
however, something else was said or was inconsistent, the credibility evidence would
be admissible.
In discrediting your own witness, this can only be done by asking for leave – s 38.
The other circumstance is where you want to discredit your opponent’s witness
under s 103, s 104 and s 106.
 Under s 103 this is about cross-examination, when ultimately allows the

attacking of the credibility of the witness. This evidence in cross-examination
has to substantially affect the assessment of the credibility of the witness.
 Under s 104 the accused is not an ordinary witness like in s 103, as they have
some protective measures under this section. You could only bring in prior
convictions if it has a substantial effect on the accused’s credibility, and you
have leave. Leave, however, will not be given to the prosecutor unless sub-
section (4) applies. Essentially, you cannot ask about an accused’s prior
convictions to attack their credibility, unless leave is granted, whereby the
credibility of truthfulness has been attacked.
 Under s 106 this is where evidence is being sought to be adduced by another
witness. Essentially, this allows other witnesses or a document to attack the
credibility, as long as, when the witness is cross-examined, the substance of the
evidence was put to the witness, and the witness denied, or did not admit or
agree to, and the court grants leave.

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CRIMINAL PROCEDURE & EVIDENCE

WEEK 1: THE ADVERSARIAL CRIMINAL PROCESS

HEARSAY AND ORIGINAL EVIDENE

INTRODUCTION TO EVIDENCE LAW

 History & Purpose

THE SYSTEM OF CRIMINAL PROCEDURE IN AUSTRALIA

 Overview of the common law adversarial criminal process?

 The trial as the focus of decision-making

CASE STUDY – MODULE 2

R v LOUISA COLLINS (1888)

R v LOUISA COLLINS (1888)

and the gravity of the matters alleged in relation to the question.

 DIRECT AND CIRCUMSTANTIAL EVIDENCE

Circumstantial Evidence Notes:

hypothesis that is in line with the presumption of innocence.

MODULE 4 - FORMS OF EVIDENCE

There are 3 ways in which evidence may be adduced:

 E.g. a coke can with the words ‘coca-cola’

REAL OR ‘OTHER’ EVIDENCE

The EA defines relevance in s 55 as:

- Smith indicted in District Court, being in company of others, robber a bank.

2. It was relevant to supporting the credibility of the complainant.

MODULE 6 – JUDICIAL DISCRETION

Examples of unfairly prejudicial evidence:

The rule against hearsay evidence is a long-standing rule of evidence at common

Scope of the Hearsay Rule:

1. ‘PREVIOUS  A previous representation is any representation – (i.e. words, silence,

 For the purposes of this definition, ‘proceeding’ does not include

2. ‘MADE BY A  The hearsay rule is expressly limited to representations ‘made by a

 The use of the word ‘intended’ represents a significant departure

4. ESTABLISHING  How do we determine what the declarant intended to assert?

There are 2 essential components to hearsay:

Subramaniam v Public Prosecutor [1956]

HEARSAY UNDER THE UNIFORM EVIDENCE LAW

Thus, evidence of a previous representation which asserts a fact is hearsay if:

REPRESENTATIONS: see definition in EA

 Representations not communicated: representations that are not in fact

*** R v Rose [2002] NSWCCA 455

STEPS FOR IDENTIFYING HEARSAY EVIDENCE

 EXCPETIONS TO THE RULE AGAINST HEARSAY

Welsh v R (1996) 90 A Crim R 364

 It is also important to consider the judicial discretions, as mentioned in s 136 of

THE HEARSAY RULE – THE EXCLUSION OF HEARSAY EVIDENCE

 S 59(2) such a fact is in this part referred to as an asserted fact.

 The ultimate admissibility of hearsay will depend on whether or not the

 Some examples include, but are not limited to:

EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE

FIRST HAND HEARSAY

FIRST HAND HEARSAY: EXCEPTIONS

 In other words, the person who perceived the previous representation is

Unavailability of witnesses: in both civil and criminal proceedings, first-hand

Criminal proceedings where the maker is unavailable: s 65 allows for first-hand

Representation for which some guarantee of reliability exists:

Representation made under a duty:

Representations made when or shortly after and unlikely to have been

Evidence already given in prior proceedings:

Representations adduced by an accused:

Representations adduced by an accused:

First-hand hearsay in criminal cases where maker is available:

Conway v The Queen [2000] FCA 461

Papakosmas v The Queen [1999] 196 CLR 297

Sio v The Queen [2016] HCA 32

 DUTIES OF THE PROSECUTOR