EVIDENCE Policy and Revision Seminar Semester 1, 2011 Matt
Hearn
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PROBLEM QUESTION REVISION 65%
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PROBLEM QUESTION STRUCTURE 1. Introduction 2. Relevance 3.
Substantive Issue on Facts 4. Discretionary Considerations to
Exclude the Evidence (ss 135 137)
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STRUCTURE INTRODUCTION 1. Purpose: Why are P adducing the
evidence? P want to adduce the evidence to show that 2. Flag the
issues for your Examiner! Whether P will be able to tender this
evidence will depend on (1) its relevance and (2) [the substantive
issue on the facts]
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STRUCTURE - INTRODUCTION 3. Putting it together P want to
adduce the evidence to prove that X had the tendency to commit the
current offence. Whether P will be able to tender this evidence
will depend on (1) its relevance and (2) whether it can be admitted
as tendency evidence.
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STRUCTURE RELEVANCE Relevance must be covered for every
question/piece of evidence Relevance is not irrelevant, but it is
not that important
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STRUCTURE SUBSTATNIVE ISSUE GENERAL TIPS Note Structure: 1.
Definition: 2. Rule: 3. Exceptions: 1. Factors 4. Exception to
Exception Example: Tendency 1. Definition: evidence of character,
reputation or conduct showing a person has a particular state of
mind or is likely to act in a particular way 2. Rule: s 97(1):
tendency evidence is inadmissible to prove X has a tendency to act
in a certain way/with a certain state of mind 3. Exceptions: S
97(1)(a) Reasoanble notice in writing AND signigicant probative
value s 97(1)(b) 1. Factors to deteremine SPV 1. Level of
similarity of the events (Case) 2. Alternative view (Case) 3.
Convictions or Allegations (Case) 4. Frequency (Case) 5. Time gaps
(Case) 2. Factors to determine prejudicial effect 3. Conclude
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STRUCTURE SUBSTATNIVE ISSUE GENERAL TIPS Evidence is not a
normal law exam. Why? Think twice: is the issue really there?
Think: what is the examiner asking me to spend time discussing?
Specificity Leave = s 192(2) Use of the common law Factors
Analogies Codifications Make a conclusion
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STRUCTURE CONCLUDING ss 135 137 Be specific and know the
difference S 135 = general S 136 = jury direction S 137 = criminal
Conclude with overall opinion
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EXAM CHECKLIST: THE COURSE IN 20 MINUTES Relevance Discretions
Competence Normal D in Criminal Proceedings Impaired/Children
Sexual Assault Victims Compellability Rule Exceptions Family of D
Multiple Ds
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Examination of Witnesses Evidence in Chief Leading Questions
Refreshing Memory Prior Consistent Statements Unfavourable
Witnesses Cross-Exam Leading Questions Questions to Discredit W
Prior Inconsistent Statements Unfavourable Witnesses Re-Exam
Re-Establishing Creditbility [think: link to credibility] EXAM
CHECKLIST: THE COURSE IN 20 MINUTES
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Privilege Self Incrimination At Trial Pre-Trial Client Legal
Privilege Disclosure Outside Court Legal Advice Privilege
Litigation Privilege Has there been loss/waiver of the privilege?
Generally Consent/Inconsistent Acts Defence of Accused Persons
Joint Civil Claims Misconduct Note: Do we have a copy of a
document? Matters of State/Public Interest Religious Confessions
EXAM CHECKLIST: THE COURSE IN 20 MINUTES
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Credibility General Rule Exceptions CE W as to Credibility CE D
as to Credibility Prior Inconsistent Statements [link: do we need
to re-examine to re-establish credibility?] Character Character of
D Character of V in rape cases EXAM CHECKLIST: THE COURSE IN 20
MINUTES
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Right to Silence Pre Trial At Trial Nb: Need for
Weissensteiner? EXAM CHECKLIST: THE COURSE IN 20 MINUTES
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Hearsay 1 st hand or 2 nd hand? General Rule Exception General
Exceptions Competence Issue Relevant for non-hearsay purpose
Business records exception 1 st hand Exceptions Civil, maker NA
Civil maker A Criminal, maker NA Criminal, Maker A Contemporaneous
Statements EXAM CHECKLIST: THE COURSE IN 20 MINUTES
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Tendency and Coincidence Tendency evidence? And/Or Coincidence
evidence? Test Notice AND Significant Probative Value Factors:
Consider common law Pfennig/AE/Hock etc Balancing test with
prejudicial effect Need to apply Res Gestae? EXAM CHECKLIST: THE
COURSE IN 20 MINUTES
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Admissions General Rule What type of evidence do we have?
Official interview requirements Can we exclude? Voluntariness
Reliability Unfairness Improperly Obtained EXAM CHECKLIST: THE
COURSE IN 20 MINUTES
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Prior Inconsistent Statements Link in with multiple topics:
know where! Rule: Prima facie blocked Test for admitting: Need to
substantially affect credibility Further criminal protection Comply
with Browne Particulars Cant adduce without giving sufficient
information EXAM CHECKLIST: THE COURSE IN 20 MINUTES
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QUESTIONS?
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POLICY REVISION 35%
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POLICY EXAM STRATEGY One Hour: First or Last? Hedge your bets
Think: Are there any new additions to the reading guide?
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TENDENCY AND COINCIDENCE HEARSAY PRIVILEGE
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STRUCUTING YOUR POLICY NOTES 1. Historical View 2. Current Law
3. Changes from Old Common law 1. What is the change? 2. Rationale?
3. Arguments for the Current Approach 4. Arguments against the
Current Approach 5. Options for Reform
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STRUCTURING YOUR EXAM ANSWER Note: a guide only: answer the
question! 1. Introduction 2. Current Law/Change/Rationale 3.
Argument for the Current Approach 4. Argument against the Current
Approach 5. Options for Reform 6. Conclude
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HEARSAY
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Rationale Creature of the Common Law (Benz) Reliability and
weight of the evidence is difficult to assess and cannot be
properly tested in court Current Law v Historical view S 59(1)/(2),
operating as an exclusionary provision Common law: wider scope
Practical effect: to increase the quantity of hearsay evidence in
court Changes from the Common Law Change 1: Introduction of
Unintended Assertions S 59(2A) Cf Common law: express and implied
assertions Advantages Allows unintended assertion
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Disadvantages Cant necessarily be cross examined Ambiguity
Deane Js comments in Walton cf Hannes Change 2: Evidence Relevant
for a Non-Hearsay Purpose Common law position: admissibility
determined separately Current law: s 60(1) Advantages Old
distinction artificial and ineffective More lenient (good or bad?)
Disadvantages Judicial interpretation in Lee cf legislatures
intention Solution: s 60(2) Is the solution undone?: s 60(3)
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Change 3: Criminal and Maker Available Current Law: s 66(2)
Fresh in Memory Requirement Rationale Judicial Confusion: Graham
Advantages Solution: s 66(2A) Disadvantages Restrictiveness
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Options for Reform Develop Fresh in the Memory for Civil
Proceedings Rationale Disadvantages Abolish Hearsay Rule in Civil
Cases Adopt the UK approach in Civil Cases Rationale Disadvantages
Telephone Exception Introduce exception for statements over the
telephone (see HCA in Walton) Rationale: common and frequent
Advantages Disadvantages
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Concluding Comments Flexibility v Certainty of Law Generally,
are specific exceptions to Hearsay good? Restrictiveness of
Australian Approach
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PRIVILEGE NOTE: IF YOU ARE CONISDERING WRITING ON THIS TOPIC,
READ MCNICOL, LAW OF PRIVILEGE IN YOUR READING GUIDE; WE DO NOT
HAVE TIME TO COVER POLICY SURROUNDING PRIVILEGE IN DETAIL, RATHER
THE BROADER ISSUES WILL BE COVERED
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Historical View and Evidence Act Policy Rationale Change From
Common Law 1: Legal Advice Privilege Change from Common Law 2:
Rules v Rights Disadvantages Anomalies Change from Common Law 3:
Privilege Against Self Incrimination Curtailing of the Common Law
Disadvantages Uncertainty Change from Common Law 4: Matters of
State Consistency recognition of common law arguments Points of
difference Disadvantage Uncertainty Change 5: Use and Unity (Sorby)
v Certificate Options for Reform Expanding the Scope S 134
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TENDENCY AND COINCIDENCE
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Historical View: Development of Common Law Makin Hock and
Pfennig Crimes Act s 398A(2) Current Law: Evidence Act Approach S
97/s98 Reflection of Makin per Lord Hershall Uncertainties with
Common law: Ellis
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Disadvantages Should only apply in Criminal Proceedings
Inconsistent with the Terms of the Act Options for Reform Expansion
of Res Gestae Definition and Rationale Advantages Disadvantages
Codification of Factors Rationale: Abolish any considerations of
the Common Law Disadvantages Replacement with an Interests of
Justice Test Similar to s 398A(2) Disadvantages
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SOME NOTES Practice Exams: Cherry Pick Gans and Palmer