Evidence α

Woolmington v DPP

Burden of Proof Standard of Proof 1. The golden thread of English criminal law is the requirement that the Crown eliminate all and any reasonable doubt which might exist on the evidence regarding the guilt of the accused. 2. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner (the presumption of innocence) is part of the common law of England, and no attempt to whittle it down can be entertained.

R v Brown

Competence and Compellability 1. At common law, witnesses who did not believe in a deity were unable to give evidence on oath. 2. Children were competent to give evidence on oath if they had sufficient knowledge of the nature and consequences of the oath; that is, they had the same test as adults.

Toohey v MPC

Competence and Compellability 1. It is for the judge to see whether the witness understands the nature of an oath and, if he does, to admit his testimony.

Hoskyn v MPC

Competence and Compellability 1. It is well established that ordinarily a person who is competent to give evidence is also compellable.

Cabassi v Vila

Competence and Compellability 1. No action lies in respect of evidence given by witnesses, however false and malicious it may be, any more than it lies against judges, advocates or parties.

Demirok v The Queen

Competence and Compellability 1. The court determines witness competency in a voir dire, typically with the jury absent. If evidence which the judge has to consider on the voir dire in deciding competence or admissibility is likely to be prejudicial to the accused, it should be received in the absence of the jury.

ACC v Stoddart

Competence and Compellability 1. There is no spousal privilege at common law. 2. At most, authority suggests that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate their other.

Longman v The Queen Convicted of indecent dealing; complaint made 20 years after the events.

Corroboration 1. A warning should be given to the jury whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of a case (such as a suspect witness). 2. Long delay necessarily impairs the fairness of trial (depriving possibility of cross-examination), thereby necessitating judicial comment.

R v Baskerville

Corroboration 1. Corroborative evidence must be independent testimony which connects (or tends to connect) the accused with the crime (specifically). 2. There need not be corroboration of every detail of testimony. 3. Circumstantial corroboration is sufficient. 4. If corroboration is required and absent, the case must fail.

Robinson v The Queen 8-year-old complains of sodomy; no warning given at trial of need to consider his evidence closely (harmonious relationship continued, no threat not to disclose delivered). Conviction overturned.

Corroboration 1. It is possible for an accused to be convicted on the testimony of a single witness. 2. s632 does not abrogate the general requirement to give a warning where it is necessary to do so in order to avoid a risk of a miscarriage of justice.

Browne v Dunn

Cross-Examination 1. A cross-examining party must put to their opponent's witnesses every part of his own case to which those witnesses can speak. Failure to do so amounts to acceptance of the witness's version of events, and in the closing address this version cannot be attacked or explained away. 2. Field: the most extreme consequence of failing to comply with this rule is that the cross-examining party who failed to put certain allegations to the opposing party's witnesses may not lead evidence of these allegations in chief when they come to present their case. Alternatively, the judge may direct the jury to take into account that certain assertions were never tested on relevant witnesses.

Toohey v MPC On charge of assault with intent to rob, medical evidence of complainant's proneness to hysteria was rejected. Admissible? (Yes)

Cross-Examination 1. Exception to the finality rule re questions as to witness credit. Answers need not be accepted as final where a witness is being examined as to physical or mental reliability.

Walker v Walker

Cross-Examination 1. Where a cross-examiner calls for and inspects a document in the possession of another party, the other party can require the cross-examiner to put it in evidence. 2. You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you call for it, you make it evidence for the other side, if they think fit to use it.!

Walker v Walker Solicitor calls for a letter substantiating a wife's claims about her husband's income. Having read it, he then objects to the letter. Can the letter be used as evidence?

Documentary Evidence Hearsay Exceptions 1. You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you call for it, you make it evidence for the other side, if they think fit to use it. 2. There is a distinction between a documents materiality and its admissibility. The hearsay rule rejects documents on the basis of their unfairness, not their want of probative value 3. Once a document is brought into a case under an exception to the hearsay rule, a trial judge is entitled to take account of it, if it is material, notwithstanding that it would have been inadmissible but for its falling under the exception (eg being called for).

Rogers v The Queen

Estoppel 1. There is no issue estoppel in criminal trials. 2. No estoppel can arise in respect of evidentiary issues, even if they are the building blocks in the proof of an ultimate issue.

Jackson v Goldsmith J sues G for damage inflicted in a road accident and fails; later sues G for contributory negligence in action brought by passenger W. Estoppel?

Estoppel 1. Where an action has been brought and judgment entered, no other proceedings can thereafter be maintained on the same cause of action (risk of conflicting judgments). 2. For issue estoppel to arise in a civil proceeding, the two issues in the different cases must be identical. Here, the issues were not identical (different duty of care).

McLellan v Bowyer Plaintiff's son declared hostile, since he was no longer answering questions for the respondent in a way contrary to the plaintiff. Correctly declared hostile? (Yes - prior inconsistent statements prove change of story).

Examination of Witnesses 1. An adverse witness is one who is 'deliberately withholding material evidence'. 2. The question of witness hostility is for the trial judge, and must be decided on the voir dire. 3. Factors for judging witness hostility include previous inconsistent statements, demeanour in the witness box, refusal to answer questions, and provable relationship with parties in the case.

R v Chin

Examination of Witnesses 1. Cross-examination is not confined to matters proved in chief. 2. Generally a plaintiff/prosecutor must call all evidence before the close of their case. The reason is one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine questions to be asked in cross-examination, which evidence to call, which objections to make. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence after the close of its case.

R v Apostilides

Examination of Witnesses 1. In criminal settings, the court will only call witnesses without party consent in exceptional circumstances.

R v Shaw

Examination-in-Chief 1. 'A leading question is one which either suggests the desired answer to the witness... or assumes a fact which has yet to be established by the evidence...' (Field summary). 2. 'Did you agree to have intercourse with the accused?' not a leading question.

Duncan v Cammell Laird

Public Interest Immunity 1. Example of PII based on document's contents (WWII submarine plans).

Nominal Defendant v Clements Plaintiff hit by unidentified car.

Examination-in-Chief 1. A cross-examiner may put to a witness that their account of a relevant matter is a recent invention or fabrication. In such cases, the suggestion may be refuted in re-examination by proving that the witness made a prior consistent statement that answers the attack made. 2. It is for the (clemency of the) trial judge to decide whether there has been such an attack on the evidence of a witness as to let in his earlier consistent statements; the suggestion need not be made explicitly (suggestion is sufficient).

R v Hayden and Slattery

Examination-in-Chief 1. A hostile witness is one who is '... unwilling... to tell the truth for the advancement of justice.'

R v Connolly

Examination-in-Chief 1. A witness may not be asked in chief whether he or she has made a statement consistent with his or her testimony; 'a witness may not lift himself by his own bootstraps to enhance his credit'.

R v Freeman

Examination-in-Chief 1. At common law, complaints of any sexual offence should be made at the earliest reasonable opportunity. 2. There is an exception to the rule against prior consistent statements for complaints of sexual assault. 3. The ultimate question for admitting prior consistent statements in sexual assault cases is whether the complaint tends to buttress the complainant's credit as a witness.

Hetherington v Brooks

Examination-in-Chief 1. At common law, evidence which a witness gives in open court should generally come from their own memory; they should not refresh their memory from any other source, and should not simply tender or read a document in their possession. 2. A voir dire examination is properly directed to matters which are not evidence in the cause, but which deal with preliminary matters such as competency... Questions as to a witness's memory bear directly upon his credibility, and are in real truth evidence in the cause.

R v Livingstone

Examination-in-Chief 1. Evidence elicited from witnesses in examination-in-chief must not go to credit only.

R v Golder, Jones and Porritt

Examination-in-Chief 1. It is a common law rule that a party may not seek to impeach the credit of one of their own witnesses.

R v Hunter

Examination-in-Chief 1. Once declared hostile, the calling party may cross-examine a witness as if they were the other party. They may impeach their credit, ask leading questions, and put to them their prior inconsistent statements.

R v Neal, Regos & Morgan

Examination-in-Chief 1. Presents an alternative to declaring apparently untruthful witnesses hostile. 2. A calling party may ask leading questions as to the facts based on a prior inconsistent statement written or signed by, and shown to, the witness. A formal declaration of hostility is not required, and the witness is given no opportunity to explain why the prior statement was made. However, the calling party must not otherwise reveal the contents of the statement to the jury, or seek to cross-examine the witness on it as if it were a prior inconsistent statement. 3. Applied in R v Thynne.

Coopers Brewery v Panfida Foods

Formal Admissions 1. A formal admission, once placed on the record, can only be withdrawn with the leave of the court.

R v McQuire

Formal Admissions 1. A guilty plea operates as a formal admission of all the elements of the offence charged.

Pollitt v R Assassination case - 'He got the wrong one'. Hirer died before trial commenced. Reports of hirer's conversations hearsay, or circumstantially relevant implied assertions (original evidence)?

Hearsay Corroboration 1. Original evidence with hearsay content admitted cannot be used as proof of the truth of the facts asserted (that is, it is admissible, but a direction should still be given to disavow the hearsay contents). 2. Conduct and implied assertions are covered by the hearsay rule, in the same way as express statements. 3. Mason CJ: Spontaneous implied assertions in (telephone) conversations are likely to have a high degree of reliability, and pose a strong case for relaxing the hearsay rule. 4. Brennan J: Verbal identification is hearsay. (4:3 support, but appeal dismissed on McHugh's application of 'no substantial miscarriage of justice' proviso). 5. The interests of justice may require comment on the evidence of a prosecution witness of particularly bad character, or a prison informer.

Subramaniam v Public Prosecutor Arrested for carrying ammunition, caught under terrorism legislation. Claimed to have been kidnapped, and been threatened by real terrorists. Was this threat admissible, or hearsay? (Held admissible on appeal - relevant to mental state of accused (duress)).

Hearsay 1. Defines hearsay: an out of court statement, relied upon for its truth value. 2. An assertion does not offend the hearsay rule if it has relevant probative value that does not depend upon the truth of the statement, that is, if it is original evidence . 3. "Evidence of a statement made to a witness by a person who is not himself called as a witness... is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made."

Teper v R Arson case. Defendant charged with arson of his own shop. Seen fleeing scene, woman commented. Hearsay? (Yes).

Hearsay 1. Gives rationale for hearsay rule. Hearsay evidence is: a) Is not given under oath; b) Is not the best evidence, and may be distorted by the reporter; c) Does not allow the demeanor of the person making the statement to be observed; and d) Cannot be subjected to cross-examination. 2. There is only one res gestae, not several - res gestae is, and is only, the facts occurring in the penumbra surrounding the actual event giving rise to the charge or action.

R v Benz Mother and daughter convicted for murder (stabbing and drowning) based in part on evidence of S that two women were on a bridge in the early hours of the morning, and one said 'My mother's just feeling sick'. Hearsay? (Yes, but some original evidence value, and admissible under res gestae; accused acquitted due to improper directions re evidence).

Hearsay 1. Hearsay exceptions are based on the high degree of reliability of the evidence. 2. Majority: identification evidence, even if by implied assertion, is inadmissible hearsay. 3. Mason CJ (dissenting) prepared to recognise a wide general rule to the effect that hearsay evidence is admissible if the circumstances in which the statement is made are such as to render it more reliable. 4. A statement cannot be admitted as part of the res gestae when one of the purposes of its tender was to establish the res gestae; circularity. 5. Dawson J (dissenting) notes that there was no identification evidence relied upon; rather, the witness gave a description of what he saw on the bridge. The identification was an inference left to the jury.

Myers v DPP Crook stealing cars and swapping ID plates, selling anew. Prosecution wanted to use indelible stamp (engine block number) on car as evidence. But, records of engine block numbers compiled were excluded by Hearsay! Led to a change in the law.

Hearsay 1. Lord Reid highly critical of hearsay law, inviting change and reformulation; 'common sense rebels against the rejection of this evidence'. 2. "No matter how cogent particular evidence may seem to be, unless it comes within the class which is admissible, it is excluded. Half a dozen witnesses may offer to prove that they heard two men... discuss in detail the fact now in issue and agree on a creditable account of it, but that evidence would not be admitted although it might be by far the best evidence available." 3. The existing law decides admissibility by categories, and not by apparent trustworthiness.

Bannon v R Prisoner's dilemma double accused (murderers). Cut-throat defence. Out of court admission of one admissible for trial of other? (No. Hearsay.)

Hearsay 1. Mason CJ's suggestion in Walton v R is a dangerous power, and would transform the admissibility of evidence in criminal trials to judicial whim. Disparages 'inherent reliability' exception to hearsay rule. (Note no controversy over implied assertions or original evidence). 2. What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused.

Baker v R

Hearsay 1. Reaffirms Bannon v R; denies relaxation of hearsay rules for confessions to help criminal accused.

Walton v R Accused murders wife; B gives evidence that accused had discussed a plan to murder the deceased, and had planned to do it after meeting in the Town Centre. Further witnesses indicate that the deceased had informed them of intention to take bus to Town Centre before death. Intention held admissible. Child saying 'Hello Daddy' on the phone held inadmissible.

Hearsay 1. Statements may be admissible in that they evidence the 'intentions' of a party in doing an action. The making of a statement has independent evidentiary value in proving the author's intentions. 2. "It is necessary to apply the same rules regarding admissibility to both implied and express assertions," albeit 'less rigorously' - that is, subject to inherent reliability of implied assertions. 3. Mason CJ: the hearsay rule should be relaxed where the evidence is 'inherently reliable' - such as assertions (as to identity) implied from telephone conversation (the subject has no reason to lie). Purposive approach. Note majority disagreement. 4. Mason CJ suggests (implied assertions over) 'telephone exception' for hearsay rule; note that the majority dismisses telephone identification as inadmissible (but also think no substantial miscarriage from admission). 5. Mason CJ creates a very problematic 'new' test for hearsay rule, based on reliability. Since frowned upon (Bannon v R). 6. The admissibility of statements of intention to do an act as proof that the act was subsequently undertaken rests on probability, and it is for the tribunal of fact to infer whether the author of the statement carried out his intention.

R v Perry (No 2) Evidence of symptoms described by man to doctor admissible as hearsay exception in subsequent trial of wife for attempted murder by arsenic poisoning.

Hearsay Exceptions 1. Descriptions of sensations or symptoms a person is experiencing, if made contemporaneously with the sensations or symptoms they describe, are admissible as exceptions to the hearsay rule.

R v Wilson Witness heard deceased wife say 'I know you want to kill me for my money'. Hearsay?

Hearsay 1. Statements may be original evidence in that they tend to show the state of a relationship, where the state of that relationship is relevant. 2. Here, the information was hearsay if used for its truth value; used to rebut the husband's claim of a perfectly happy relationship before an accidental gunshot, it was original evidence and admissible.

Hayslep v Gymer Deceased's housekeeper hands money to next of kin, saying 'It was a gift to me'.

Hearsay 1. Statements may be original evidence where they are necessary to explain or contextualize accompanying or subsequent acts.

Re Gardner Bankruptcy case. Petitioner relied upon G's fleeing the state intending to defraud creditors. Tried to use Qantas ticket stub. Hearsay.

Hearsay 1. The hearsay rule applies to all out-of-court intimations, whether oral, written, or communicated by conduct. 2. Historically, documents had difficulty getting past the hearsay rule. "If [the document] does not speak its contents, how can it have probative value?" See also Myers v DPP.

Bull v R Telephone conversation relevant to rebutting rape allegation. Hearsay?

Hearsay 1. The relevance of the conversation depends not on the truth of these assertions but on the facts that [the person] said what they said. 2. Regardless of the truth value of these statements, the fact that they were made and that the complainant responded in the way she did is relevant to the complainant's reason for going to the house in the light of her subsequent action in attending the house in response to the telephone call. Her state of mind - her reason for going to the house - was relevant to whether she consented... and her statements in their context were evidence of her state of mind. 3. Also a res gestae example.

Kamleh v The Queen Accused noted to witness that television was turned up to full volume. Only known to police and presumable murderer. Admissible?

Hearsay 1. Whether tendered evidence is hearsay depends upon the use that is sought to be made of that evidence. If what is relevant is the fact that the statement was made, rather than the truth of what was said, so that the statement is not relied upon to prove the facts narrated in the statement, then what is involved is not hearsay. 2. Statements disclosing states of knowledge with probative force are original evidence. 3. Supports Walton re use of statements to establish intentions held by persons as original evidence (here, intention to 'catch up' with the victim expressed by accused).

Ratten v R Wife shot 'accidentally', but phone call made at 1:15 (before shooting) indicating wife's hysterical fear - 'Get me the police please'. Suggests that the shooting wasn't an accident, but hearsay. Admissible? (Yes).

Hearsay Hearsay Exceptions 1. Lord Wilberforce: The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. 2. Otherwise-hearsay evidence will be admissible if it is circumstantially relevant, such as by demonstrating the mind-state of the subject. Here, hysteria over phone rendered evidence admissible. 3. Implied assertion in telephone call (that serious events requiring police presence were taking place) held admissible (Note: not used to identify). 4. Useful method: break down the statement into it's non-hearsay components. All statements have non-hearsay dimensions; the true question is whether those non-hearsay dimensions are relevant. 5. Note value of deductive reasoning - evidence that woman A called is inadmissible; evidence that a woman called is admissible, and where woman A is the only woman who could have called, amounts to admissible evidence that woman A called. 6. Res gestae explained: Hearsay evidence may be admitted if the statement is made in such conditions (of approximate but note exact contemporaneity) that exclude the possibility of concoction. (It would be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife - without knowledge of what was done at the time, the transaction of which the alleged murder formed an integral part could not be truly understood, and, isolated from it, could only be presented as an unreal and not very intelligible event. 7. EVEN IF inadmissible as hearsay, information would have been admissible under the res gestae exception.

Vocisano v Vocisano Brothers crash - who was driving?

Hearsay Exceptions 1. 'Historical accounts', rather than statements made as part and parcel of the occurrence, are not admissible as part of the res gestae. 2. HKP: Emphasises contemporaneity for res gestae, placing a narrow boundary around the contemporaneity concept.

R v Andrews Stabbed; staggers downstairs and identifies Andrews as one of the assailants. Dies of injuries two months later.

Hearsay Exceptions 1. (Lord Ackner) Five factors for admission under res gestae: a. Can the possibility of concoction be disregarded? b. Was there any real opportunity for 'reasoned reflection'? c. Did the event still dominate the thoughts of the maker? d. Do the circumstances suggest motive for fabrication? e. Was there any other source of error (drugs, drunk)?

Harriman v The Queen Accused convicted of being concerned in heroin importation. Is evidence of prior use and sale of heroin admissible? (Yes - res gestae).

Hearsay Exceptions 1. (McHugh J) Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. Res gestae principle.

R v Doyle

Hearsay Exceptions 1. A confession is a direct and express out of court statement that is made by the accused and suggests guilt.

R v McGregor

Hearsay Exceptions 1. A party against whom an admission is tendered is entitled to have the whole context in evidence (including any contextual self-serving statements).

Albrighton v Royal PA Hospital

Hearsay Exceptions 1. Certain documents are inherently reliable, thereby justifying their exceptionality to the hearsay rule.

State of WA v Montani Dying declaration of murder victim to security guard.

Hearsay Exceptions 1. Dying declarations rationale. 'the sanction upon the conscience of a person, believing he is in a dying state, to tell the truth, will be at least as great as taking the oath in the witness box.' 2. Dying declarations will also tend to constitute res gestae.

Milirrpum v Nabalco Statements by deceased ancestors to Aboriginal people as to rights of various tribes to land admissible.

Hearsay Exceptions 1. Illustrates hearsay exception for declarations as to general rights.

The Henry Coxon Boats collide in the Thames. First mate logs an entry three days later.

Hearsay Exceptions 1. Illustrates limitations of 'Declarations made under a duty' hearsay exception. Evidence rejected since log entry was second-hand hearsay, made three days after the event, and the author had an interest in placing his own actions in a good light.

Holloway v McFeeters

Hearsay Exceptions 1. Informal admissions may be express or implied, verbal or implied from words or conduct. 2. Here, failing to stop at a road accident was taken as an informal admission of guilt.

Woon v The Queen Claimed not to know Radcliffe; later became clear that he did, and sent cryptic and 'nefariously suggestive' messages with false names and false addresses. Admissible as an admission? Yes.

Hearsay Exceptions 1. Juries are entitled to consider the significance of answers where an accused chooses to answer. 2. False accounts of movements, false denials of knowledge of relevant facts, and conduct, utterances and demeanour demonstrative of guilt are admissible as admissions by conduct.

Edwards v The Queen

Hearsay Exceptions 1. Not every lie told by an accused provides evidence probative of guilt. A lie can constitute an admission against interest only if it is concerned with circumstances relating to a material issue and it is told in circumstances where the explanation for the lie is that the accused knew that the truth would implicate him in the offence. 2. Lies used as informal admissions must be clearly identified, as well as their circumstances. 3. Juries should be instructed that there may be reasons for the telling of a lie apart from realization of guilt (Edwards Direction).

Parkes v R "Why did you stab her?" asked twice. No response.

Hearsay Exceptions 1. Silence in response to an allegation in circumstances where a denial would be reasonably expected if untrue may be taken as an implied admission (although only if parties are on equal speaking terms).

Barca v R

Hearsay Exceptions 1. Simple denials are not admissible as implied admissions from lies (a hearsay exception).

Higham v Ridgway Ledger kept by a midwife produced as evidence of payment for services rendered; receipt acknowledges satisfaction of debt. Hearsay?

Hearsay Exceptions 1. Statements by now deceased persons against financial interests is admissible as a Hearsay exception on the ground that a person would hardly make such a statement if it were not true.

R v Thomas

Hearsay Exceptions 1. Statements made by another in the presence of the accused are hearsay, and can only be used as evidence against him if he does something by utterance, silence or conduct which justifies an inference that he has acknowledged the truth of the statement so as to make it his own, or has so conducted himself as to show a consciousness of guilt.

R v O'Meally Police constable gave description of assailant to three others before death. Inadmissible.

Hearsay Exceptions 1. To be admissible as a 'declaration made under a duty' the statement must be made in the course of a duty to do an act.

R v Lee

Hearsay Exceptions 1. To be admissible, confessions must be made 'in the exercise of a free choice to speak or to be silent.' 2. An objective test of reliability is a factor to be considered in all cases where the accused seeks to invoke the court's discretion to reject a voluntary confession. 3. Imports Christie discretion to exclude evidence where it would be unfair to the accused. 4. The uneducated - perhaps semi-illiterate - man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable... In such a case it may well be that his statement, if admitted, would prejudice him very unfairly.

Sturla v Freccia Evidence from report of committee appointed by Genoese government re fitness of consul candidate inadmissible, since document did not comply with four requirements.

Hearsay Exceptions 1. To be admitted under the hearsay exception for public documents: - Document must exist for public use on public matters. - Document must be available for inspection by the public. - Document must be made by a person under a duty to satisfy themselves to the truth and accuracy of the contents. - Document must have been intended to be kept indefinitely.

R v Thompson

Hearsay Exceptions 1. Where a trial is aborted, but a witness is unable to attend the second hearing, their sworn testimony from the first trial is admissible as an exception to the Hearsay rule.

R v Swaffield Covert tape-recording of conversation between accused and undercover police officer.

Hearsay Exceptions Illegally Obtained Evidence 1. Confessions may be admissible if they are voluntary, reliable, and not excluded by the exercise of an overall judicial discretion. 2. Tricks may be used to procure confessions, provided they do not contravene a statute (or procedural rights). 3. Eliciting admissions by underhanded means AFTER an accused has exercised their right to silence is a breach of their procedural rights. 4. In deciding whether to exercise their discretion the court will look at the circumstances. Those may point to unfairness to the accused if the confession is admitted; or, if there is no unfairness involved, the court may consider that the evidence came at too high a price to prevailing community standards. 5. There are three discretions. Voluntary and reliable confessions may be excluded by judicial discretion if it would be unfair to the accused to admit it, or if the confession was unlawfully, unfairly or improperly obtained, or if the prejudicial impact of a statement is greater than its probative value.

Ramsay v Watson Medical officer could not give evidence of the medical history taken from persons examined; not sufficiently contemporaneous.

Hearsay Exceptions Opinion Evidence 1. To be admissible under the 'expression of thoughts or feelings' hearsay exception, the expression must be contemporaneous to the sensations or symptoms expressed; there must be no possibility of either a motive or an opportunity for falsehood. 2. Expert opinion must be relevant to the facts in issue - where the opinion is not based on the actual (accepted) facts of the case, the evidence will be irrelevant.

Alexander v The Queen Identification by photograph. Only one witness was shown a photo of the accused before arrest; others were shown after. No identification parade was held, and no valid reason was given for not doing so.

Identification 1. Identification is notoriously uncertain. It depends upon so many variables (the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, previously; the extent of the opportunity for observation; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute photographic images once seen for hazy recollections. 2. Identification parade is the safest and most satisfactory form of identification evidence, since necessarily held in the presence of the accused. 3. Photo-boards are a tolerable substitute to an identification parade in the investigative stage of proceedings; however, improper in the evidentiary stage, and only to be used in exceptional cases (such as refusal to take part in an identification parade - R v Clune). 4. The judicial discretion to exclude evidence of identification obtained by inappropriate means is regarded as part of the general judicial discretion to exclude evidence whose prejudicial effect outweighs its probative value. 5. Improperly admitted identification evidence does not immediately quash a conviction: the true question is whether having regard to teh whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice.

Domican v The Queen Wife and husband victims of attack by gunman in driveway; hid behind bonnet of car. Wife saw D interviewed on television in April. In May, told police that she could not identify gunman. In October, formally identified D. At trial, claims wig and false moustache; never indicated before, first indication came from another police witness (police seem to have orchestrated a change in evidence).

Identification 1. Whatever the defence and however the case is conducted, whenever identification evidence is a significant factor of the Crown's case, the jury should be given a warning about the hazards of identification generally, and any specific concerns of the current case. (A Domican Direction). 2. The court will quash any conviction where a Domican Direction has been deemed to have been inadequate, regardless of the strength of the rest of the Crown case (unless so compelling the identification evidence was unnecessary).

R v Hasler

Illegally Obtained Evidence 1. Admissions are not by themselves prejudicial; prejudice cannot refer to the damage to the accused's case through direct proof of the offence. To be prejudicial, evidence must show discreditable conduct other than those facts which directly tend to prove the offence itself.

McKinney & Judge v The Queen Accused parties sign confession document; but claim at trial that what appeared above their signatures had been fabricated by police.

Illegally Obtained Evidence 1. Because of the potential for abuse, courts are exceptionally wary around confessions procured by police which are not properly recorded. 2. The McKinney Direction: juries must be careful with confessions which accused parties allege to be post-signature fabrications. 3. Suggests that, to avoid allegations of 'verballing', all interviews should be videotaped. Largely followed.

R v Christie Assaulted child identifies accused twice, but only first identification is led by the child in court. Mother gives evidence as to first identification. Admissible?

Illegally Obtained Evidence 1. Evidence which, despite its relevance, has a highly prejudicial effect upon the prospect of a fair trial, ought to be excluded under judicial discretion (The Christie Discretion). (Imported/upheld in Australia in R v Lee).

R v Ireland Stabbing case, broken knife handle. Photographs of injuries to accused's hands taken without consent, and without letting a doctor of the accused's choice to be present during a medical examination of them.

Illegally Obtained Evidence 1. Gave judges a general discretion to exclude illegally-obtained evidence in order to discourage unlawful and shoddy practices on the part of the police and law enforcement agencies. 2. Evidence of relevant facts ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. The trial judge has a discretion to reject the evidence. Competing public requirements on the need to bring rightful convictions and the protection of the individual from unlawful and unfair treatment, recognizing that convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. 3. Police cannot compel persons to submit to photography for purposes other than identification.

Bunning v Cross B confesses to having been drinking and driving; breathalyzer at station reveals that he is over the limit. However, police failed to offer a RBT, and had no reasonable grounds for believing that he had been driving under the influence; subsequent test was thus illegally, albeit innocently, obtained. Held admissible despite.

Illegally Obtained Evidence 1. It is not fair play that is called into question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. 2. Evidence obtained in contravention of public policy is excluded by discretion, not absolutely inadmissible. 3. 5 factors for public policy discretion: a. whether the police have deliberately disregarded the law; b. whether the illegality effects reliability; c. the ease of compliance in the circumstances; d. the nature of the offence; e. the manner in which the legislature appears to have sought to restrict or control police actions. 4. Police errors and omissions are not to be encouraged, but are far from the real evil: a deliberate or reckless disregard of the law by those whose duty it is to enforce it. 5. Cogency of the evidence obtained should not be considered for exercise of the discretion; but where the illegality occurs by mistake, it may be properly considered as a factor.

Tofilau v R Telephone murder confession, being recorded, unknowingly, by the police, posing as undercover criminals.

Illegally Obtained Evidence 1. The important test for unfairness of a trick is whether the confession elicited is 'manufactured', as opposed to be substantially the result of the accused's volition. 2. For there to be inducement by a person in authority, the accused must perceive, on reasonable grounds, the person to have the coercive power of the State.

Ridgeway v The Queen With the collaboration and assistance of Australian Police, a traffickable amount of heroin was the subject of a controlled delivery by Malaysian police to Australia, to be sold to the appellant, leading to his arrest. Argued exclusion of illegally obtained evidence.

Illegally Obtained Evidence 1. Where an accused has been enticed or 'entrapped' into committing an offence, this is not a defence, but the discretion for excluding evidence for offence to public policy may come into play. 2. Evidence is particularly liable to be excluded where police have committed the very (and primary) offence the legislation exists to stop ('grave and calculated police criminality' with 'selective prosecution').

R v Mawson

Introduction 1. A trial judge is entitled to express his own view on the facts, even in strong terms. In such circumstances, the judge must warn the jury that they are not bound to act upon his view of the facts if it does not appeal to them.

R v Stephenson

Introduction 1. Not all evidence which is logically relevant is also admissible. There are degrees of relevance. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. 2. Evidence must be sufficiently relevant to be admissible.

Goldsmith v Sandilands Police officers in a high speed chase. G sues S for negligent handling of the vehicle.

Introduction Relevant facts Cross-Examination 1. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. (Probative test of relevance). 2. Defines fact in issue: the material facts that constitute the claimant's cause of action; the set of facts to which the law attaches the legal consequences that the claimant asserts. 3. Courts may be reluctant to consider collateral issues. 4. Answers given to questions going only to credit are final.

Cavanett v Chambers Magistrate undertakes private research into blood alcohol levels from journals. Judicial notice?

Judicial Notice 1. Reference works may be consulted for facts about which there could be no real dispute; it is quite another thing for the tribunal of its own motion to seek to inform itself out of court on questions of fact or opinion vital to the issue and by no means free from controversy (particularly where parties are not given an opportunity respond or consent).

Holland v Jones

Judicial Notice 1. Wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court "notices" it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any necessary doubt.

Telstra v MCITA (No 2)

Legal Professional Privilege 1. 'An in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.'

Daniels Corp v ACCC ACCC delivers notice to produce documents covered by LPP. Did TPC s155 quash LPP?

Legal Professional Privilege 1. (Kirby J) 'Legal professional privilege is a right that will not be taken to have been abolished by legislative provision except by express language or clear and unmistakable implication.' 2. Here, there is no necessary implication that LPP is quashed by the terms of the statute. It is far from obvious that the retention of LPP would significantly impair the ACCC's functions under the act - documents covered by the privilege are a small percentage of the documents whose production can be required by such notices. 3. Contrast Pyneboard v TPC (on SIP).

CT v Spotless Services

Legal Professional Privilege 1. Defines 'dominant' as 'that purpose which was the ruling, prevailing, or most influential purpose.'

Esso Australia Resources v FCT Appellant challenges assessments of income tax, claiming client legal privilege in respect of a number of documents on the basis that they had been prepared for the dominant purpose of giving or receiving legal advice.

Legal Professional Privilege 1. Displaces Grant v Downs sole purpose test - too extreme in the other direction, extraordinarily narrow. 2. Establishes dominant purpose test as the test for LPP. 3. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, without attracting any attendant privilege.

Goldberg v Ng Solicitor accused of mishandling Ng's money. Brought action and complained to Law Society. Goldberg voluntarily disclosed brief to LS, subject to retention of privilege. Did disclosure for disciplinary charges effect a waiver of LPP?

Legal Professional Privilege 1. General waiver may be implied from a limited disclosure (even where the intention to retain privilege is specifically stated) where it is required by the principle of fairness. 2. The circumstances in which a waiver of LPP will be imputed cannot be precisely defined in advance. 3. Here, disclosure of a document to respond to disciplinary charges impliedly waived LPP.

Grant v Downs

Legal Professional Privilege 1. Historically, LPP was only available where legal advice was the sole purpose of the communication. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation.

Galway v Constable

Legal Professional Privilege 1. In Queensland, a legal practitioner must be admitted to practice for a claim of LPP to be upheld.

Waterford v The Commonwealth FOI request for projections concerning unemployment statistics. Department claimed LPP. Can the Commonwealth claim LPP?

Legal Professional Privilege 1. LPP can extend to communications between government departments and their in-house lawyers. It is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers.

Attorney General (NT) v Kearney AG seeks legal advice on how to exceed statutory powers to defeat an Aboriginal land claim.

Legal Professional Privilege 1. LPP cannot be claimed for advice sought on how to exceed/abuse statutory power, or prevent others from exercising legal rights.

R v Cox & Railton

Legal Professional Privilege 1. LPP cannot be claimed for communications made in pursuance of fraud or crime. 2. In order that the rule of privilege may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him.

R v Williams Female Legal Aid Queensland employee and man meet through dating agency. Some legal discussion. LPP?

Legal Professional Privilege 1. LPP cannot be claimed where advice is given informally, outside of what may properly be regarded as a lawyer-client relationship.

Brookfield Multiplex v ILF Partners Class action firm offers preliminary advice on website. Some viewers later sought further advice. When does LPP kick in?

Legal Professional Privilege 1. LPP is not available for unsolicited advice. 2. LPP does not require a formal relationship, i.e. through a retainer; LPP kicks in at the moment a client seeks advice from a lawyer.

R v Tompkins Accused attempted to pass note to counsel advising of perjury during cross examination. Picked up by opposing counsel. LPP?

Legal Professional Privilege 1. LPP may be lost when a document inadvertently comes into the hands of a third party, even if dishonestly.

Minter v Priest

Legal Professional Privilege 1. Parties must be in lawyer-client relationship to claim LPP, and the communication in question must be 'fairly referable to that relationship'

CAFP v Propend Finance Documents seized under search warrant. LPP claimed, however, some of the documents were copies which would not themselves have been privileged in the hands of the clients.

Legal Professional Privilege 1. Privilege attaches to the communication, not the information. Copies of documents created for litigation cannot be seized, even if originals could. 2. Obiter: however, if an original is inaccessible and no unprivileged copy or other admissible evidence is available to prove the contents of the original, the privileged copy loses its privilege. 3. Hearsay is not sufficient to rebut a claim of privilege. Evidence of an illegality of purpose must itself be admissible in court.

R v Bell ex parte Lees

Legal Professional Privilege 1. Privilege may not be used to frustrate the processes of law, e.g. by suppressing the location of a child who was the subject of a custody order. 2. A client's contact details will only be privileged if they came to the solicitor's knowledge in confidence.

Rich v Harrington Sexual harassment claim. Company sent letter claiming that the firm 'has acted at all times with the benefit of external advice and does not believe there has been any victimisation'. LPP waived?

Legal Professional Privilege 1. Reference to advice given as justifying conduct waives privilege with respect to that advice. Principle of fairness.

Vance v McCormack Plaintiff sued for wrongful termination from RAAF, who took advice from defence law officers (permanent staff, no practising certificates).

Legal Professional Privilege 1. The test for employed lawyers is one of independence and objectivity of advice. 2. Privilege would only protect the confidentiality of a communication with an employed lawyer when they had an actual right to practise as a solicitor or a lawyer.

Baker v Campbell Can documents held by a firm of solicitors brought into existence for legal advice purposes be seized under a search warrant?

Legal Professional Privilege 1. There is an interpretative presumption that LPP is not intended to be excluded by statute, unless the words of the statute expressly or necessarily require that result. 2. LPP arises, not just for judicial proceedings, but whenever compulsory disclosure is involved. Not even a Federal search warrant could force disclosure of a privileged disclosure. The rationale applies equally, whether the compulsion is at the hands of the executive or judiciary. 3. LPP rationale: Its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them. Although a rule of evidence, the underlying justification is a right which the law considers basic.

Attorney-General (NT) v Maurice

Legal Professional Privilege 1. Waiver is all or nothing; it cannot be split between one part of a document and another, unless the same document contains two separately privileged items. 2. The question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material is privileged from production. 3. Incidental reference to further privileged information does not waive privilege.

May v O'Sullivan

No Case to Answer 1. On submission of 'no case to answer,' the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. 2. In considering a 'no case' submission, the judge should consider the evidence at its highest, without regard to any alternative explanations which might exist consistent with the defendant's innocence.

Clark v Ryan Expert called in to give behaviour of semi-trailer. Held inadmissible.

Opinion Evidence 1. Expert evidence is admissible whenever the subject matter is such that inexperienced persons are unlikely to prove capable of forming correct judgments, that is, where the subject so far partakes of the nature of a science as to require a course of previous habit or study, in order to the attainment of a knowledge of it. 2. The court is reluctant to acknowledge collision damage as a realm of expertise. Here, the 'engineer' was not asked engineering questions, and was not experienced with the operation of semi-trailers; there was no clear subject of expertise. 3. Academic qualifications or specialized study are not always necessary to be an expert. Expertise will depend on the point in issue. 4. Experts are not to become involved in the decision-making process; they are not permitted to give evidence on the ultimate issue/central question. The Opinion must remain within his/her field of expertise.

Weal v Bottom Semi-trailer turn death. Expert was an experienced driver, with 18 years experience driving vehicles, including articulated semi-trailers, around the crash site bend. Admissible - contrast Clark v Ryan.

Opinion Evidence 1. Experts can become experts by practical experience (but the subject must yet remain outside ordinary experience). Technical study is not necessary. 2. It would be very surprising if a course of study by reading and instruction warranted the admission of a statement as to the behaviour of a vehicle derived from its nature whereas a long course of actual experience in the use of the vehicle or of observation of its actual behaviour in relevant circumstances did not qualify a person to speak as to such behaviour.

Makita v Sprowles

Opinion Evidence 1. If evidence tendered as expert opinion evidence is to be admissible, it must: a. be agreed or demonstrated that there is a field of "specialised knowledge"; b. be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; c. the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; d. so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; e. it must be established that the facts on which the opinion is based form a proper foundation for it; f. and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.

R v Sicca Murder charge; significant bleach-containing footprints at bottom of stairs. 'Experts' analyse the footprints. Identifiable field of expertise?

Opinion Evidence 1. The expert must furnish the jury with criteria to decide; their role is to assist the tribunal, not to determine the facts. 2. Although no identifiable expertise was alleged, here, exposing their detailed analysis to the jury was sufficient.

Murphy v The Queen

Opinion Evidence 1. The subject for opinion must be outside the scope of ordinary experience, such that the tribunal requires assistance. Evidence admitted otherwise is a distraction from the jury's task of deciding the matter for themselves using their own common sense. 2. Courts tend to be more flexible in acknowledging the value of expert assistance (such as psychological assistance). Here, psychological evidence on the voluntariness of words spoken by an adult with the literacy of a child was held admissible.

Frye v United States

Opinion Evidence 1. To be admissible, expert evidence must be based upon a body of knowledge sufficiently established to have gained general acceptance in the particular field to which it belongs.

R v Gilmore

Opinion Evidence 1. Where reliability and credibility of an expert opinion are open to refutation in cross-examination, where the question of its weight is fairly present to the jury, and where the risks of prejudice and misleading the jury can be managed by judicial direction, comment, or warning, the trend is for courts to be open to relevant, useful expert opinion. 2. To recognize a degree of risk of inaccuracy and a need for caution is far from treating the evidence as inadmissible. 3. Cautionary observations are an adequate safeguard against regarding the whole question as passed over to the experts.

Sherrard v Jacob Charged with drunken driving. Witness opines to drunkenness. Admissible?

Opinion Evidence 1. While it is for the court, not the witness, to draw inferences from primary observed facts, this cannot be treated as a strict or hard and fast rule without getting in the way of reasonable proof. 2. The subjects on which non-expert witnesses may opine is not a closed category, and cannot be stated exhaustively. Examples include: identification of handwriting, persons and things; apparent age; bodily plight or condition of a person; emotional state of a person; the condition of things; questions of value; estimates of speed and distance. 3. Lay opinion is admissible where the primary facts and the inferences to be drawn from them are so closely associated that it may be hard to separate them. It is admitted for convenient distillation. 4. Curran LJ: Witnesses are able to opine as to accused sobriety; but to opine further that their intoxication rendered them incapable of driving a vehicle would be to usurp the function of the magistrate.

Runjanjic and Kontinnen v The Queen Expert evidence given on battered wife syndrome. (Admitted).

Opinion Evidence 1. Witnesses are to state facts, not opinions; such conclusions as arise from the facts are for the court to make, not the witness.

Sorby v Commonwealth Provision modifying privilege inserted into RCA halfway through an investigation by a Royal Commission.

Privilege Generally Self-Incrimination Privilege 1. Details the history of common law privilege. 'It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to "the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice."' Nonetheless, it is not protected by the Constitution, and may be taken away by legislative action. 2. SIP does not prohibit compelling a witness to give real evidence. 3. Self-Incrimination privilege is not confined to criminal trials, but may be claimed in any court proceedings, tribunal, Royal Commission, or non-judicial proceedings. 3. There is a presumption that the legislature does not intend to alter so important a principle of the common law (SIP).

DPP v Boardman Headmaster accused of sodomy of two students. Trial judge ruled that evidence of each was admissible in relation to the charge of the other. Admissible? (Yes. Appeal dismissed because of the similarity between the unusual facts narrated by each boy).

Propensity 1. Restated principles on the reception of propensity evidence. Where Makin focussed on relevance to an issue, the new formulation is in terms of a 'total issues' test: is prejudice to the accused outweighed by the probative force of the evidence? 2. Propensity evidence is admissible where it is so very relevant that to exclude it would be an affront to common sense. The question must always be whether the similar fact evidence taken together with the other evidence would do more than raise or strengthen a suspicion, or point so strongly to his guilt that only an ultra-cautious jury would acquit in face of it. 3. Two witnesses, who each require corroboration, may corroborate each other.

Mood Publishing v De Woolfe

Propensity Evidence 1. (Lord Denning) In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it. 2. Affirmed in Australia by Mister Figgins v Centrepoint Freeholds (although note the dismissal of the 'oppressive or unfair to the other side' limitation).

Jones v DPP

Propensity Evidence 1. (The English equivalent of) EAQ s15(2) applies only where the prosecution is raising a matter with the jury for the first time. Where the accused voluntarily discloses information, the prosecution is entitled to question him upon it.

Makin v AG NSW Foster service for babies. Mother shown wrong child; police dig up previous gardens and find 12 more babies' bodies. Evidence admissible in current trial? (Yes).

Propensity Evidence 1. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. 2. The mere fact that evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

Phillips v The Queen (2006) Appealed against convictions for rape. Six complainants brought their cases together. Defence applied for separation thrice (all dismissed). Was evidence of each complainant admissible in respect of each others allegations?

Propensity Evidence 1. Lack of consent (rape cases) are ill-suited for propensity evidence. Lack of consent by 5 complainants cannot validly establish a lack of consent by the sixth - similar fact evidence is used in relation to the state of mind of the accused. 2. Striking similarity is required before propensity evidence will have the highly probative character required to justify admission. 3. Criticizes Queensland diversion from Pfennig in O'Keefe and subsequent cases.

Pfennig v The Queen Convicted of abduction and murder of child. After the disappearance, Pfennig is convicted of abduction and rape of another child (which occurred afterwards). Later charge admissible? (Yes).

Propensity Evidence 1. Propensity evidence is not admissible if it shows only that the accused has propensity or a disposition to commit a crime. 2. Propensity evidence is admissible if its probative value or cogency is such that there is no rational explanation for the evidence which is consistent with the accused's innocence of the crime charged. "Only if there is no such explanation can one safely conclude that the probative force of the evidence outweighs its prejudicial effect." Here, the Crown case was strong without the similar fact evidence, but became overwhelming with it. 3. (McHugh) Prejudicial effect and probative value are incommensurables. 4. The admissibility of propensity evidence normally requires striking similarity. 5. Propensity evidence is a special class of circumstantial evidence. 6. Reasoning is based on propensity evidence's role in the criminal trial, and hence, the criminal standard of proof.

Smith v The King Wife drowned in bath. Crown allowed to lead evidence of the deaths of two other wives of the accused in almost identical circumstances after the death of the first wife. Assumption that the other two wives had been murdered; Each of the three deaths in the series relied on the occurrence of the other two to eliminate any possibility of coincidence or accident.

Propensity Evidence 1. Propensity evidence may be admitted where it would be stretching coincidence too far to suggest that multiple incidents of identical behaviour on separate occasions occurred accidentally, without criminal intent.

R v Ball Siblings charged with incest. Had previously had child together. Admissible? (Yes).

Propensity Evidence 1. Propensity evidence tending to demonstrate a prior relationship is admissible, as it sheds light on the true nature of the relationship at the relevant time of the charge. 2. Reconfirmed in Harriman v The Queen.

Hoch v The Queen Allegations of a series of sexual offences against three boys who lived in a boys' home. Distinct possibility of concoction.

Propensity Evidence 1. Where the possibility of collaboration cannot be ruled out, similar fact (propensity) evidence should be regarded as inadmissible.

Commonwealth v Northern Land Council

Public Interest Immunity 1. Example of PII by class. Cabinet deliberations fall within a pre-eminent class of documents where there are strong considerations of public policy militating against disclosure, regardless of contents. The court will oppose a disclosure order, except in exceptional circumstances.

Sankey v Whitlam Allegations of conspiracy against Gough Whitlam. Access to cabinet papers sought by accuser. Public interest immunity to publication claimed.

Public Interest Immunity 1. It is duty of the court, and not the privilege of the executive government, to decide whether a document falls within PII. 2. There is no class of case where public interest justifies automatic suppression of information, or complete immunity. 3. PII requires the court to balance public interests in the instant case. "There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done." 4. 'High matters of state' are usually under PII. (Gibbs ACJ) 'proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them.' 5. Immunity by class will only be upheld if really necessary for the proper functioning of the public service; immunity by class is not absolute, and does not last forever. Even if within a privileged class, where documents relate to a proposal never instituted, abandoned 3 years ago, and of no continuing significance to the present activity of government, and might disclose wrongdoing by government officials, the public interest lies in their disclosure.

ASSPA v Maurice Disclosure request for secret information conveyed in confidence by Aboriginal informants.

Public Interest Immunity 1. PII can be claimed by non-governmental organisations. The test is injury to public interest. 2. Here, the public interest was that of fostering a relationship between Aboriginal informants on the one hand, and the authority and its agents on the other, in order to enable the Authority to effectively perform its functions.

Alister v The Queen

Public Interest Immunity 1. The court must balance the nature of the injury which the nation or public service would be likely to suffer with the evidentiary value and importance of the documents in the particular litigation. 2. Necessity to criminal defence is a strong claim against PII; although a mere fishing expedition can never be allowed, it may be enough that it appears to be on the cards that the documents will materially assist the defence.

D v NSPCC HoL refused to disclose child abuse informant who made false accusation.

Public Interest Immunity 1.'The category of public interests is not closed, and a contents claim may be made upon the basis of public interests which do not involve the running of a government.'

Wojcic v Incorporated Nominal Defendant Insurance company sends investigator to hospital to investigate plaintiff. Suggested that on first occasion, not capable of discussing the accident; on the second, could not remember. Failed to obtain signature on claim form. Error suggested in cross-examination. In re-examination, defendant adduces reports; defendant wins. Plaintiff cries inadmissibility. (Re-examination justified and admission of the reports justified).

Re-Examination 1. Re-examination must be confined to the explanation of matters that arose on cross-examination: it is an exercise in repairing the damage done. 2. A party is entitled, in re-examination, to elicit from his witness facts which explain away or qualify prejudicial facts elicited from the witness in cross-examination.

Kozul v R

Real Evidence 1. General practice allows items of real evidence to be taken by the jury into the deliberations room. 2. Material objects given over to the jury are not to be treated in such a manner as would create new evidence.

Butera v DPP Imperfect recording of drug dealers having a conversation in English, Punjabi, Thai and Malay. Two interpreters produce English translation transcripts.

Real Evidence 1. Where recordings are admitted, a transcript of that recording may also be received. The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but in order to aid it in understanding what conversation is recorded on the tape, and that the jury cannot use the transcript as a substitute for the tape if it is not satisfied that the transcript correctly sets out what it heard. 2. The practice of requiring witnesses to give their evidence orally should not be waived lightly. Here, it would have been all but impossible for the jury to appreciate the cross-examination of the interpreters if the translations had not been reduced to writing. It was a case in which a departure from the ordinary practice was justified and in which it was appropriate to admit the translations in evidence and permit the jury to have them in the jury room.

Plomp v The Queen Wife, good swimmer, drowns in suspicious circumstances. Husband liasing with another woman - strong motive. Admissible?

Relevant Facts 1. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of commission of the crime charged; no legal doctrine prohibits a case being made out entirely upon circumstantial evidence. 2. An issue may be proved by circumstantial evidence if the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 3. Here, the jury were entitled to conclude that it would 'put an incredible strain on human experience' if the strength of the circumstantial case (motive, talk and actions, convenient death) fell through (owing to completely fortuitous death despite her being a good swimmer and in circumstances which ought not to have been a danger).

R v Boyes

Self-Incrimination Privilege 1. (Cockburn CJ) To legitimately claim SIP, 'the danger to be apprehended must be real and appreciable... not a danger of imaginary or unsubstantial character... so improbable that no reasonable man would suffer it to influence his conduct.' 2. Self-incrimination privilege dismissed as simply ridiculous.

Blunt v Park Lane Hotel

Self-Incrimination Privilege 1. Classic statement of SIP. 'The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.'

Pyneboard v TPC TPA authorises TPC to require information from persons. Under s155(7), persons cannot refuse due to self-incrimination, but answers given are not admissible in any criminal proceedings other than under the act.

Self-Incrimination Privilege 1. Court was unwilling to hold that SIP was simply a rule of evidence, and hence confined to the courtroom. The issue of availability falls to be decided by reference to the statute itself. 2. High Court is reluctant to accept submissions that statutes have impliedly abrogated self-incrimination privilege. 3. Privilege will be impliedly excluded by statute if the obligation to answer is expressed in general terms and appears from the character and purpose of the provision that it was not intended to be subject to any qualification (exclusion by necessary implication). 4. SIP here excluded, since the obligation is imposed to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. The provision is valueless if the obligation to comply is subject to privilege. 5. Contrast Daniels Corp v ACC (on LPP).

EPA v Caltex Refining

Self-Incrimination Privilege 1. High Court refused to extend SIP to corporations. May only be claimed by a natural person; there is no cruelty to a corporation. 2. SIP is not intended to afford protection against evidence which was already in existence, and which spoke for itself - it does not cover real evidence. 3. SIP exists to protect the individual from the cruel trilemma of punishment for refusal to testify, for truthful testimony, or for perjury.

Lamb v Munster

Self-Incrimination Privilege 1. Self-incrimination privilege not available, because crime had been royally pardoned. No real risk of incrimination.

Brebner v Perry Witness invokes SIP in criminal proceedings against friend, despite having already admitted both his and his friend's guilt to the police. He had already made himself liable to any prosecution that might have been laid. SIP?

Self-Incrimination Privilege 1. Where there is no risk of incrimination (due to prior admissions), a claim of privilege made solely to protect another cannot be bona fide. 2. Where an objection to answer is not bona fide for the protection of a witness himself, he will be compelled to answer. 3. It is for the witness to claim the privilege, and for the court to assess whether or not the claim is justified. The claim by the witness, even on oath with no doubt as to credibility, is not sufficient.

Jones v Dunkel Husband killed in collision. Defendant fails to give evidence. Juror asks: "Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?" (Yes).

Silence and Inference 1. (Menzies J) Where a party is silent, a jury is entitled to regard this as a weakness in their case, subject to the following: a) The absence of the defendant as a witness cannot be used to make up any deficiency in evidence. b) Evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence. c) Where an inference is open from the facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 2. Field: The rule has subsequently been extended to failures to call material witnesses or material documents.

Petty and Maiden v R Hitchhiker murder. Does not claim defence of accident to police; arises only at trial. May silence to police be taken as an adverse inference in judging the weight to be given to the defence?

Silence and Inference 1. A person who believes on reasonable grounds that he or she is suspected of having been a party to any offence is entitled to remain silent when questioned or asked to supply information by any person in any authority about the commission of an offence, the identity of the participants or the roles they played... 2. An incident of that right to silence is that no adverse inference can be drawn against an accused by reason of his or her failure to answer. 3. Hence, silence in response to questioning by police or persons of authority is inadmissible (for example, as an implied admission).

Dyers v R Criminal accused tenders evidence of diary, which indicated he had been with other people at time of alleged abuse. None of the witnesses were called.

Silence and Inference 1. Courts are reluctant to allow the failure of a criminal accused to call witnesses to be used as evidence against the accused. 2. It is the responsibility of the crown, and not the accused, to ensure that all material witnesses are called. It is for the prosecution to prove its case beyond reasonable doubt. 3. Jones v Dunkel directions are inappropriate in the case of a criminal accused. Arguably abolishes the Weissensteiner direction.

R v Peel Alleged fire bombing with molotov cocktail. Accused silent, after having been advised by trial judge that no adverse inference could be drawn from silence; judge gives Weissensteiner direction to jury.

Silence and Inference 1. Dangers of Weissensteiner directions: Accused was assured by trial judge that no adverse inferences would be drawn from silence, but, subsequently, trial judge gave Weissensteiner direction to the jury. Judge misled accused. 2. Weissensteiner direction inappropriate where accused is silent, but inference is shaky - for example, where the bottle of a firebombing is a common one, able to have been handled by many people, and an accused's silence 11 months after an incident is understandable: it could not be safely concluded that the accused in this case must have had knowledge of how his fingerprints came to be on that particular bottle, but chose not to reveal it on oath.

Weissensteiner v R Two people disappear while at sea; W later is found with their boat. Chooses to remain silent.

Silence and Inference 1. In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. 2. Silence at trial does not amount to an implied admission. Silence may, however, be taken into account when evaluating the probative value of evidence which has been given. 3. Note distinction between inferring guilt from silence, and drawing an inference otherwise available more safely because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.

Briginshaw v Briginshaw

Standard of Proof 1. The civil standard of proof is the balance of probabilities. 2. 'Balance of probabilities' is not a fixed concept; the persuasiveness of one's case may have to increase in proportion to the seriousness of the allegation. The nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

R v Cavkic

Standard of Proof 1. The law is littered with disasters at defining 'beyond reasonable doubt.' At best, it amounts to the question whether, after careful consideration of the evidence, reasonable doubt exists in the minds of the jury, in which case it is their duty to acquit. The task should not be approached by reference to calculation of percentages.

Wendo v The Queen Argued that it must be proved beyond reasonable doubt that a confession was voluntary before it could be admitted.

Voir Dire 1. To admit evidence on a voir dire, the court need only be satisfied of the facts necessary to justify its admission on the balance of probabilities. It is then for the jury to determine weight.

Field v Commissioner for Railways F injured stepping off train. During negotiations, goes to doctor for the other side; admits contributory negligence. Was the admission made without prejudice?

Without Prejudice Privilege 1. Although WPP covers statements made in the course of negotiations and 'reasonably incidental' to them, it does not cover statements which are not reasonably connected directly with the attempted settlement process (i.e. it was unnecessary to settlement). 2. Doctor's observations were not covered by WPP, since a) real evidence, or b) necessarily within the contemplation of parties that doctor's evidence would become expert testimony for opposition. Doctor visit had necessary back-up purpose of use by opposition in trial. 3. WPP is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct; it is not concerned with objective facts which may be ascertained during the course of negotiations.

Rodgers v Rodgers

Without Prejudice Privilege 1. It is not necessary to use the precise words 'without prejudice' - surrounding circumstances and the parties' demeanor can indicate that they are engaged in a genuine attempt to resolve the issue.

Tomlin v STC

Without Prejudice Privilege 1. WP correspondence may be used as evidence of a successful agreement, but not otherwise.