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دانلود کتاب Cross on evidence
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Cross on evidence
ویرایش: [10th Australian edition.] نویسندگان: John Dyson Heydon, Sir Rupert Cross سری: ISBN (شابک) : 9780409339581, 040933958X ناشر: LexisNexis Butterworths سال نشر: 2014 تعداد صفحات: [3500] زبان: English فرمت فایل : PDF (درصورت درخواست کاربر به PDF، EPUB یا AZW3 تبدیل می شود) حجم فایل: 24 Mb
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Full Title Copyright Preface Table of Cases Table of Statutes Table of Contents Chapter One — Introduction 1 Development of the Law of Evidence A History and controversial nature of evidence Seventeenth-nineteenth centuries Pre-twentieth century history Controversies as to the nature of the law of evidence Two views Australian developments The work of the Law Reform Commission and its results 2 Range of the Law of Evidence A The diversity of the law Procedure, form, witnesses, exclusionary rules and proof B Proceedings in courts Dispensing with evidence rules Power of courts to order, and of the parties to agree, that the rules of evidence be dispensed with Different types of jurisdiction Criminal/civil jurisdiction; paternal jurisdiction; administrative function Different types of court Statutory modification of evidence rules in particular courts Different stages of proceedings Decisions before trial and on the voir dire Decisions after the trial C Proceedings in other Tribunals Varieties of fact-finding tribunals The nature of the problem The role of statute The role of natural justice Nature of issues and consequences of finding Subpoenas, oaths and privileges 3 Principal Items of Judicial Evidence Evidence classified Testimony, hearsay, documents, real evidence and circumstantial evidence A Facts in issue Main facts Examples of main facts in issue Cases with multiple issues Subordinate or collateral facts Subordinate or collateral facts defined and illustrated Relationship of testimony to the other items of evidence Testimony as central to, but as distinguished from, hearsay, documents, real evidence and circumstantial evidence B Facts as evidence of other facts: circumstantial evidence The nature of circumstantial evidence Circumstantial evidence defined Means of proving circumstantial evidence The distinction between direct and circumstantial evidence C Examples of circumstantial evidence Classifying circumstantial evidence Wigmore’s classifications Prospectant evidence Justification for reception of prospectant evidence Continuance Course of business Habit Motive or plan Knowledge or capacity Concomitant evidence Justification for reception of concomitant evidence Opportunity Res gestae Standards of comparison Retrospectant evidence Justification for reception of retrospectant evidence Omnia praesumuntur rite esse acta Mechanical instruments Possession as evidence of ownership Absence of explanation and failure to give evidence: general Absence of explanation and failure to give evidence: possession of recently stolen goods Absence of explanation and failure to give evidence: general illustrations Absence of explanation and failure to give evidence: key factors Absence of explanation and failure to give evidence: the significance of a prima facie case Absence of explanation and failure to give evidence: Jones v Dunkel Absence of explanation and failure to give evidence: criminal cases Absence of explanation and failure to give evidence: belated explanation Fingerprints Blood tests Blood, urine and breath tests Tracker dogs Corpus delicti D Means of proof Testimony The nature of testimony Hearsay Preliminary account of hearsay The status of documentary evidence Things or real evidence The nature of real evidence Material objects Appearance of persons, objects and scenes Demeanour or conduct of witness Views, demonstrations, reconstructions: in court/out of court distinction Views, demonstrations, reconstructions: procedure on practical aspects Automatic recordings: status as real evidence Automatic recordings: the limits of admissibility Automatic recordings: other issues Automatic recordings: complex illustrations Charts Documents as real evidence Conclusion E Evidence of identity Evidence of identity: General Categories of identification evidence Direct evidence of identity Background Miscarriages of justice Experiments Reasons for errors in identification Identification parades Errors in police procedure Photographs and films: general Photographs: precautions Photographs: “rogues gallery effect” and “displacement effect” Discretion to warn juries: background Devlin Report Domican warning Content of Domican warning Mutual corroboration Dock identification Identification from photographs Identification parades Identification parades and photographic identification Restrictions on identifying witness’s role Object identification Content of jury warning Voice identification The principles at common law and under the Acts Uniform Acts The structure, the provisions and the authorities Circumstantial evidence of identity Similar facts and other probative circumstances 4 The Best Evidence Rule A Definition and statement of rule Definitions Primary and secondary evidence Statement of rule Lord Hardwicke’s definition B The inclusionary aspect Limits on inclusionary aspect Examples of limited inclusionary aspect C The exclusionary aspect Limits on exclusionary aspect Examples of limited exclusionary aspect D The remains of the rule The decline of the rule Remaining instances of the rule 5 Relevance, Admissibility and Weight of Evidence A The structure of the issues Admissibility of relevant evidence and inadmissibility of irrelevant evidence B The admissibility of relevant evidence Definition of relevance Common law and statutory definitions Exceptions General Hearsay Opinion Character Conduct on other occasions Multiple relevance and admissibility Multiple relevance and limited admissibility C The inadmissibility of irrelevant, and insufficiently relevant, evidence Illustrations The plan Remoteness Multiplicity of issues Danger of manufactured evidence Alternative statements of the rule Issues of judgment Apparent exceptions Three suggested exceptions Facts affecting the admissibility of evidence Curative admissibility Conditional admissibility D Relevance and admissibility The distinction between relevance and admissibility Stephen’s terminology Problems with Stephen’s approach The demand for more basic concepts “Materiality” and “receivability” E Admissibility and weight of evidence Distinguishing weight and admissibility Significance of admissibility/weight distinction F Terminology Cogency issues Cogency issues: introduction Insufficient evidence Incapacity to persuade a reasonable person Prima facie evidence: first sense Not obligatory for reasonable person to decide in proponent’s favour Prima facie evidence: second sense (presumptive evidence) Reasonable person must decide in favour of proponent in the absence of further evidence Conclusive evidence Court must find the fact proved Presumptions Various meanings of “presumption” 6 Res Inter Alios Acta An obscure maxim Meanings of the maxim 7 Evidence in Federal Courts and Courts Exercising Federal Jurisdiction Federal evidence law Purpose of section A The High Court of Australia Original jurisdiction of High Court Section 79 of Judiciary Act 1903 (Cth): High Court B Other Federal courts and State courts exercising Federal jurisdiction Section 79 of Judiciary Act 1903 (Cth): other federal courts and State courts C Courts of Territories Relevant legislation 8 The Status of Evidence not Objected to The consequences of failure to object The process and consequences of objection The doctrine of waiver Use of evidence not objected to, if admissible for one purpose, is limited to that purpose Conduct of parties may make hearsay admissible Completely inadmissible evidence usable to the extent of its rational persuasive power Admission tendered without objection receivable to prove self-serving parts Duties of criminal courts to exclude inadmissible evidence not objected to Rules which parties have an option to take advantage of or not 9 General Aspects and Problems of the Evidence Acts 1995 (Cth and NSW), the Evidence Act 2001 (Tas), the Evidence Act 2008 (Vic), the Evidence Act 2011 (ACT) and the Evidence (National Uniform Legislation) Act (NT) A Application of the Acts Extent of the Acts Application to courts Provisions unique to Commonwealth Legislation not affected by Acts Differential application of s 9 Sections 9 and 10 Excluded topics, other statutes, internal differences Excluded topics Statutory rules of evidence not found in the Acts Internal differences in the Acts B Codification in relation to the Commonwealth Act What is a code? First pointer to codification: inferences from concurrent or adjacent operation of general evidence law Second pointer to codification: inferences from fundamental provisions that cover the field Third pointer to codification: s 56 First pointer against codification: the terms of the Act Second pointer against codification: the legislative history Third pointer against codification: principle of legality Illustrations of principle of legality C Codification in relation to the NSW Act, the Vic Act, the Tas Act, the ACT Act and the NT Act Mini codes D Judicial development Forms of judicial development E Recourse to the former law Lord Herschell’s approach Capacity to resort to former law F Law reform and other preparatory materials Use of extrinsic materials Statutory avenues G Characteristic features of the Acts Notices, requests, discretions Three features Notice requirements Requests facility Discretions and indeterminate criteria Power to excuse failure Miscellaneous powers Appropriateness Pre-trial consequences H Topics omitted by the legislation Omissions Evidential topics omitted I Inconsistency of State Laws and Cth: Evidence Act Means of precluding inconsistency 10 The Record of Trial A Content of record Definition, disputes and resolution Incompleteness of record and its consequences 11 The Treatment of Wrongly Received Evidence A Wrongly received evidence Dealing with changed rulings Means of handling consequences of changed rulings 12 The Treatment of Agreements between Counsel A Agreement not to pursue issues Miscarriage of justice caused by agreements between counsel Appeals Chapter Two — Facts which Need not be Proved by Evidence 1 Judicial Notice A Introduction Relationship of judicial notice to other instances of non-compliance with rules of evidence Structure of law Adjudicative facts and legislative fact The categories of judicial notice B Judicial notice of notorious facts The categories of notorious facts Distinction between facts noticed without inquiry and facts noticed after inquiry Notorious facts judicially noticed without inquiry Categories of facts judicially noticed without inquiry Notorious facts judicially noticed after inquiry Function of category Permissible sources Natural justice Historical facts Custom Professional practice Economic conditions Local conditions Scientific matters and instruments C Judicial notice of domestic law Common law and statute law Special senses of judicial notice D Judicial notice of state matters Governmental issues Basis of rule Political matters Acts of Parliament Subordinate legislation Other public documents E Theoretical questions Principal conceptual issues Outline Judicial notice and notorious facts Judicial notice and reception of evidence Differences between taking judicial notice and receiving evidence Judicial notice and personal knowledge Use by specialist tribunals of their specialist knowledge Disclosure by judge or juror of personal knowledge Rationale Tacit application Some differences between adjudicative and legislative facts F Legislative facts Constitutional facts Constitutional validity of enactments and executive conduct Construction of non-constitutional statutes Legislative facts as part of statutory context Construction of constitutional statutes Legislative facts as part of constitutional context Development of common law Legislative facts establishing the common law G Evidence Acts Section 144 of Evidence Acts Construction and illustrations 2 Formal Admissions A Civil cases Methods of admitting facts Pleadings, notice to admit, agreement B Criminal cases Methods of admitting facts Plea of guilty only permissible common law method Explanation for common law rule Statutory methods Methods open to Crown Victorian position Effect of formal admission made in one proceeding in others 3 The Teachings of Ordinary Experience A General Significance of problem Reception of empirical material not complying with rules of evidence General experience and relevancy Examples of general experience in use Introduction Language and arithmetic Simple physical and scientific phenomena Human behaviour and motor vehicles Human behaviour and railways Physical activities General practice Presumptions of continuance and death Community standards Human mental and emotional states Motives Deception Inference of knowledge Admissions by conduct Silence Ordinary human nature Assessment of credibility and weight B General problems Key conceptual issues Legal control of the generalisations Relationship with expert opinion evidence Mixture of elements 4 Further Categories Background facts, colouring-book facts and visual aids Suggested additions Judge Posner’s practice Chapter Three — Estoppels 1 Estoppel by Record A Introduction Status of estoppel by record Character of estoppels Underlying principles B Effect of judgments on all persons Conclusiveness of judgments Conclusiveness against all persons Judgments in rem C Effect of judgments on parties: civil cases General effect Outline Specific rules Final judgment Competent tribunal Foreign judgments Identity of parties Identity of capacity Privity: general Identity of parties and privity of interest Interests in goods No application to findings in criminal proceedings Res judicata Issue estoppel Issue estoppel: legal indispensability Issue estoppel: identity of issues Issue estoppels in propositions of law Issue estoppels and negligence Issue estoppel: role of pleadings, evidence and argument Issue estoppel: prior criminal proceedings Issue estoppels: prior finding taken with evidence Issue estoppel: policy limitations Need for estoppels to be specially pleaded Effect of judgments on parties: matrimonial and children’s cases D Effect of judgments on parties: criminal cases Autrefois acquit and autrefois convict Cause of action estoppel Restriction of issues by previous convictions or acquittals Discretion to stay second trial Issue estoppel Identifying the “issue” Double jeopardy Evidentiary rulings Acquittal in first proceedings no defence to charge of perjury in second E Extended doctrines of estoppel by record Policy behind estoppel by record Introduction Arguments not raised Different parties F The rule in Hollington v Hewthorn Judgments as evidence against strangers The problem stated Authorities before Hollington v Hewthorn Justifications for the rule Scope of the decision in Hollington v Hewthorn The admissibility of the previous convictions and acquittals of the parties in subsequent cases Previous convictions in civil cases Previous convictions in criminal cases Previous acquittals Suggestions for reforming the law Legislative reform English authority Defamation 2 The Place of Estoppels in the Law Estoppels characterised Estoppel as a rule of evidence The controversy Chapter Four — The Burden of Proof and Presumptions 1 Different Types of Burden of Proof A Introduction Preliminary Structure of chapter The meanings of “burden of proof” B Legal burden Definition — Legal burden Range of usages C Evidential burden Definition — Evidential burden Range of usages D Illustrations of confusion Types of confusion and their sources Consent in rape Insanity of testator “Defences” other than denial of essential element in a criminal charge 2 Incidence of the Burden of Proof A General rules Evidential burden Structure of the section Taylor’s test General rule Criminal “defences” Civil defences Legal burden Normally burden on moving party Walsh J’s formulation Burden of proving a negative Assertion essential to whose case? B Presumptions expressing the incidence of the burden of proof Linguistic shifts Describing burden of proof in the language of presumption Presumption of innocence Meaning and consequences Presumption of sanity Meaning and consequences C Some statutes affecting the incidence of the burden of proof Representative examples Deeming provisions Bills of Exchange Act 1909 (Cth) s 35(2) Averment provisions Statutory interpretation in criminal cases Summary trials Examples Trials on indictment: exceptions and provisos No Crown burden to negative exceptions and provisos Trials on indictment: Dowling v Bowie Trials on indictment: Vines v Djordjevitch Trials on indictment: exculpatory provision in separate statute Trials on indictment: facts peculiarly within knowledge of accused Trials on indictment: criticism of English cases Trials on indictment: R v Edwards Trials on indictment: impact of Woolmington v DPP Trials on indictment: impact of human rights charters D The interpretation of agreements affecting the burden of proof Agreement in civil cases Legal burden generally affected Perils of the sea: The Glendarroch Legal burden of proving negligence Insurance exceptions War loss and theft 3 Shifting Burdens of Proof A General An illusory conception Non-shifting burden Circumstances in which burdens may “shift” B The shifting of the evidential burden Tactical shifting Provisional burdens Basic facts and presumed facts Legal shifting Tactical considerations C The shifting of the legal burden Can the legal burden shift? The nature of the controversy D Distribution of issues Different location of legal burden on different issues “Ultimate burden” 4 Presumptions: General A Introduction General problems Causes of problems Main senses of “presumption” B The classifications of presumptions Types of presumptions Sources of difficulty Facts presumed from basic facts Presumptions of fact Nature and illustrations Presumptions of law Nature and illustrations Irrebuttable presumptions of law Nature and illustrations Rebuttable presumptions of law Nature and illustrations Relationship between presumption and probative value of basic fact Absence of inherent weight in presumptions Limitations on presumptions in criminal cases Quantum of rebutting evidence The new classifications “Evidential” presumptions “Persuasive” or “compelling” presumptions Lord Denning’s analysis Other classifications C Conflicting presumptions Mutually cancelling presumptions Instances D Conclusion Specific presumptions and statutory provisions Specific presumptions Criminal Code Act Chapter Five — Degrees of Proof 1 Civil and Criminal Standards — Degrees of Proof A General Non-circumstantial evidence Introduction The distinction between the criminal and civil standards Degrees of proof within each standard Failure to meet a standard on an issue does not establish the contrary Difficulties of formulating a “reasonable doubt” Set form of words? Set formula in Australia Circumstantial evidence No higher standard for circumstantial evidence Standard does not apply to each item of evidence Standard of proof where accused bears legal burden Balance of probabilities B Proof of crime in civil proceedings A dilemma Civil standard Distinction between inference and conjecture C Standard of proof in matrimonial causes Adultery Civil standard D Miscellaneous Contempt of court Criminal standard Sentencing Differential standards of proof Professional disciplinary and other proceedings Civil standard 2 The Question of a Third Standard and the Possibility of Anomalies — Degrees of Proof Multiple standards? A controversy Two standards, with a qualification 3 Mathematics and the Standard of Proof — Degrees of Proof Mathematical techniques An emerging field Marginal significance Useful applications and dangers 4 Standard of Proof Relating to Sufficiency of Evidence: Discharge of Evidential Burden Sufficiency issues Different stages Test on appeal Test at close of evidence No-case submission Criminal standard in criminal cases Assumption that evidence favouring proponent is to be accepted 5 The Process of Fact Finding Fact finding Unexplored issues Evaluation of factual findings 6 Statutory Reform Evidence Acts and Criminal Code Degrees of proof Reflection of common law Chapter Six — The Functions of Judge and Jury 1 The General Rule—The Functions of Judge and Jury A Introduction Significance of distinct roles General Law/fact distinction B Some special cases Construction Contracts and statutes Defamation A compromise C Exceptions Foreign law Foreign law as a question of fact Reasonableness Where reasonableness is for the judge Facts affecting the admissibility of evidence Conditions precedent to admissibility Absence of the jury Identity of preliminary fact with fact in issue Confessions Confessions: the problem of the voir dire Confessions: permissibility of question on voir dire as to the truth of the confession Cross-examination at trial about admission on voir dire Confessions: procedure on voir dire Confessions: role of prosecution counsel in seeking voir dire The burden and standard of proof at a trial within a trial 2 Judicial Control of the Jury A Withdrawal of an issue from the jury Need for sufficiency of evidence Structure of section Consequences of insufficiency Civil cases Criminal cases: “no case” submission Criminal cases: “unsafe” submission Criminal cases: “Prasad invitation” Magistrates B Discretion to exclude evidence Overriding rules of admissibility Development of common law discretion Nature of the discretion Discretion to exclude relevant evidence in criminal proceedings Discretion to exclude relevant evidence in civil proceedings C The summing up Judicial control of jury Directions and comments D Appeals Varieties of process Criminal cases tried with a jury Civil cases tried with a jury Civil cases tried by a judge alone Effect of wrongful rejection or admission of evidence Effect of denial of natural justice Chapter Seven — The Competence and Compellability of Witnesses 1 Introduction A Structure Key distinctions Competence, compellability and privilege distinguished B History Non-Christians, convicts, interested persons, parties, spouses of parties Non-Christians Convicts Interested persons Parties in civil cases The accused Spouses of the parties: the common law disability Spouses of parties: exceptions to common law disability Statutes affecting spouses 2 Competence and Compellability under the Modern Law A Preliminary Structure of this section Introduction B Children Sworn evidence Necessary understanding Procedure on inquiry as to understanding Unsworn evidence Tests for capacity to give unsworn evidence C Disabled persons Competence to give evidence on oath or affirmation, or unsworn Tests for competence Vulnerable witnesses Evidence in protected environment D The accused As a witness for the prosecution Substantial preservation of common law rule of non-competence Non-competence of co-accused Rendering a participant competent and compellable As a witness for the defence Accused competent for the defence Evidence in chief Evidence elicited in cross-examination As a witness for a co-accused Accused competent for, but not compellable against, co-accused E The accused’s spouse Rule of incompetence Modification of common law of non-competence The accused’s spouse as a witness for the prosecution Preservation of common law exceptions Compellability of competent spouse Dangers in joinder of counts Statutory competence in England does not imply compellability Australian statutory equivalents to English Act of 1898 Queensland New South Wales Victoria Tasmania South Australia Western Australia Northern Territory Commonwealth and Australian Capital Territory The accused’s spouse as a witness for the accused or a co-accused Queensland New South Wales Victoria Tasmania South Australia Western Australia Northern Territory Commonwealth and Australian Capital Territory Spouses and civil proceedings Former spouse testifying to matters occurring during the marriage Statutory change in relation to divorced spouses Criminal cases Civil cases F Sovereigns, diplomats, members of parliament Competence and non-compellability Statutory regimes G Bankers Competence and non-compellability Statutory regimes H Experts Competence, compellability and discretion Rule of practice I Absent witnesses Video-link evidence Statutory regimes and questions of principle 3 Oath, Affirmation and Unsworn Evidence A Oath and affirmation Facilities and procedures Statutory regimes B Unsworn evidence The accused’s unsworn statement at a criminal trial General abolition Unsworn evidence of children Comparison with sworn evidence Informal evidence of adults and children Comparison with sworn evidence Miscellaneous Counsel and others Chapter Eight — Corroboration 1 When Corroboration is Required A Introduction Background Preliminary Contrast with canon and civil law B Statutory provisions Range of enactments Preliminary Statutes requiring two or more witnesses Perjury Procuration Unsworn evidence of children: reliability? Unsworn evidence of children: corroboration Unsworn evidence of children: ban on mutual corroboration? Affiliation: general Affiliation: alleged father’s letters Breach of promise of marriage Bigamy Miscellaneous statutory provisions C Rules of practice Duties to warn General Accomplices Peremptory warning Evidence of co-accused Who is an accomplice? Davies v Director of Public Prosecutions Non-accomplices Functions of judge and jury Corroboration of an accomplice’s evidence Mutual corroboration of accomplices Statutory relaxation of peremptory rule Adultery Caution to be exercised Sexual offences Common law duty to give direction Implication in material particular Abolition of duty to warn Sworn evidence of children Common law requirement and its statutory abrogation Mutual corroboration Claims against the estates of deceased persons Corroboration desirable but not essential Matrimonial causes No corroboration requirement Disputed confessions and other possible cases Confessions, witnesses with purposes of their own, identification, potentially unreliable evidence 2 The Nature of Corroboration A Introduction Definitional issues Definition Significance of issues Circumstantial evidence as corroboration “Intrinsically credible” evidence B Conduct or condition of the person whose testimony requires corroboration Self-corroboration compared with physical condition Common law rule against self-corroboration Statutory rule against self-corroboration Physical condition and distress C Conduct of the party against whom corroboration is required Range of conduct Admissions Evidence of defendant or accused Falsity of evidence Failure to give evidence False statements out of court Silence when charged Conduct on previous occasions Previous conduct to show specific propensity Previous conduct to corroborate accused’s statement to witness D Functions of judge and jury Range of problems Is evidence capable of corroborating, and does it do so? Where there is no corroboration Summing up 3 Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 General Contrast between s 164 and s 165 Sections 164 and 165 Chapter Nine —The Course of Evidence 1 Miscellaneous Procedural Matters A Introduction Structure of the chapter The role of counsel B Evidence before trial Civil cases Summary Affidavits Commissions Letters of request Interrogatories Perpetuation of testimony Criminal cases Summary The preliminary examination Coronial and other depositions Victorian pre-trial criminal procedures C Ordering witnesses out of court Right to stay in court until contrary order Orders and consequences of breach D The right to begin Opening addresses The function of an opening Order of speeches E The calling of witnesses and the role of the judge Essential feature of adversary system Outline Order of calling witnesses Power of judge to call witnesses in civil cases Power of judge to call witnesses in criminal cases Exceptional nature of power Time of calling witness Evidence in chief and cross-examination Power to elucidate evidence Jury questions Crown prosecutor’s responsibility for calling witnesses Content of prosecutor’s duty Court control of prosecutor Additional principles Powers of and restraints on the judge 2 Examination in Chief A Introduction Character testimony General Question-and-answer system B Leading questions The ban and its exceptions Definition and illustration Primary exceptions to the prohibition Further exceptions to the prohibition Leading questions in cross-examination C Refreshing memory The principle of orality Orality and refreshing memory Hypnotically induced evidence Conditions on which memory may be refreshed by reference to a document Summary Contemporaneity: general Contemporaneity: depositions Qualifications to contemporaneity rule Documents read over or accepted as accurate by witness Production of the document The original Distinction between those cases in which memory is refreshed and those in which it is not refreshed Present recollection revived/past recollection recorded Present recollection revived Past recollection recorded Hearsay rule Consequences of document being in evidence Calling for and inspecting document Statutory changes D Previous consistent statements The rule against previous consistent statements Statement and justification for the rule Difficulties with the rule Complaints in sexual cases Development of the law Admissible in criminal prosecutions for sexual offences; voluntariness Speed Proof of particulars of complaint Complaint must relate to sexual character of offence Complaint not provable by complainant alone Statutory changes The effect of delay in complaint on fairness of trial Previous consistent statements admitted as part of the res gestae Meaning of “res gestae” Previous consistent statements admitted to rebut afterthought Rebutting suggestion of afterthought Examples Statutory position Statements admissible under statute Australian equivalents to Evidence Act 1938 (Eng) Limited effect of statutes Other possible exceptions Three further examples Statements on being taxed with incriminating facts Statements made on recovery of incriminating articles Previous identification of the accused Statements validated by scientific means Lie detectors and truth drugs Conclusions Consideration of rule against prior consistent statements E Unfavourable and hostile witnesses Common law Introduction The prohibition on impeaching a party’s own witness Unfavourable witnesses Hostile witnesses Statutory provisions Criminal Procedure Act 1865 (Eng) s 3 Unfavourable witnesses Evidential value of previous inconsistent statements Jury direction Common law approach: merits Evidence Acts 1995 (Cth and NSW), 2001 (Tas), 2008 (Vic), 2011 (ACT) and Evidence (NUL) Act 2011 (NT) Evidence Act 1938 (Eng) Effect on hostile witnesses Effect on unfavourable witnesses Leading questions to witness not formally declared hostile 3 Cross-examination and Re-examination A Introduction Purposes, limitations and examples Purposes, limitations and examples B The rule in Browne v Dunn Definition and operation Definition Operation Exceptions and consequences of non-compliance Exceptions: notice in other ways Exceptions: a lack of necessity and delicacy Exceptions: challenges to general credit Consequences of non-compliance C General issues in connection with cross-examination Rights to conduct and exposure to cross-examination Leading questions and advocacy Who may be cross-examined Who may cross-examine Loss of right to cross-examine Nature and consequences of questions Imputations must have a basis, but not necessarily an evidentiary basis Cross-examination can widen admissibility Control of lengthy cross-examination Width of questions and finality of answers Form of questions Cross-examination as to credit Cross-examination of co-accused Cross-examination after judicial questioning Divergence between instructions and evidence D Previous inconsistent statements General Introduction Proof of previous statements Previous statements in writing: The Queen’s Case Previous statements in writing: the current legislation Particular problems Documents which are not those of the witness Depositions Tape recordings Previous inconsistent statements as evidence of facts stated E Cross-examination on documents generally Calling for documents Calling party to tender document if required to Rule in Walker v Walker and its abolition F Finality of answers to collateral questions The general rule The rule: statement and illustrations The rule: justifications The rule: evaluation Exceptions to the general rule Convictions, bias, inconsistent statements and tendency to untruth G The distinction between cross-examination as to the issue and cross-examination as to credit General Effect of distinction H Re-examination Object and limits Object Limits Admission of further evidence Illustrations 4 Evidence in Rebuttal A Introduction The rule General B Criminal cases Introduction The rule Effect of High Court cases Particular elements Discretion Exceptional circumstances Special cases Reasonable foreseeability Credit issues Formal, technical or non-contentious matter Unavailable evidence Relevance in chief Evidence after summing up Evidence before commencement of defence case Jury request Accused’s good character Reasons for rule Rule of fairness Questions in cross-examination permissible Immediate tender of documents Particular points C Civil cases Introduction The rule Exceptions A special problem Differential allocation of burden of proof Chapter Ten — Character and Credibility 1 Credibility of Party’s Own Witness A “Disposition” distributed Key distinctions Character of witness, similar fact evidence, cross-examination of accused B Supporting own witness Good character evidence party’s own witness The bolster rule C Impeaching own witness Rule against impeachment Hostile witnesses 2 Credibility of Opponent’s Witness A Discrediting techniques — Summary Avoiding irrelevance and vexation General considerations B Convictions Development of the modern law History Relevance and spent convictions C Discreditable acts Questions going only to credit Limits on cross-examination and finality of answers D Bias, interest and corruption The categories defined Distinctions and illustrations Special rules E Lack of veracity General character as a ground for disbelief History and survival of anomalous rule F Medical or physical disability Lack of reliability on medical grounds Testimony and confessions G Cth: Evidence Act 1995, NSW: Evidence Act 1995, Vic: Evidence Act 2008, Tas: Evidence Act 2001, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 ss 103, 106 and 108C Exceptions to statutory “credibility” rule Limits of the exceptions 3 Character of Party A Miscellaneous exceptions The exceptions outlined Summary B Prosecution witnesses Persons other than complainants in sex cases General Complainants in sex cases The nature of the problem The common law rules Statutory change: outline Prohibition on evidence of complainant’s sexual activity or experience: introduction Prohibition on evidence of complainant’s sexual activity or experience: local variations Miscellaneous instances where character of prosecutor/victim is relevant Common law and statutory position C Accused Accused’s adduction of good character General Evidence of good character The issues distributed Common law Statute The purpose and effect of good character evidence Purpose Effect Application of character evidence The judge’s direction Common law and statutory possibilities Rebuttal Common law: putting character in issue Common law: modes of rebuttal Statute Co-accused Common law Statute D Parties to civil proceedings Relevance of character Varieties of relevance 4 Rehabilitation of a Witness A Modes of supporting credibility Common law and statute Common law Statute Chapter Eleven — Similar Fact Evidence 1 Exclusion at Common Law in Criminal Proceedings A Introduction The nature of the problem An exclusionary rule Structure B Statement and history of the rule Statement of the rule Definitional issues History of the rule Makin’s case and its significance C Scope of the rule An exclusionary rule Rule excluding relevant evidence, subject to exceptions Relevance Probative force and prejudicial effect Relevance via disposition Impermissible chain of reasoning The common law rule in Pfennig’s case Crimes inherent in the background Irrelevance of disposition to guilt Res gestae and relationship evidence Corroboration Rebutting suggestion of coincidence Misconduct of the accused No limitation to criminality The role of similarity Conclusion The test summarised The role of the exclusionary discretion D The degree of probative force Probative force Strong probative force Balancing probative force and prejudicial effect Factors relevant to probative force Cogency of evidence showing bad disposition Strength of the inference from evidence of bad disposition that criminal conduct took place Strength of the inference from evidence of bad disposition that accused was criminal Relevance of similar fact evidence to fact in issue The role of similarity Effect of narrow defence on admissibility Cumulative testimony Prejudicial effect Examples of non-prejudicial evidence Institutional perils in prejudicial evidence Trial level Secondary prejudice E Application of the rule A variety of contexts Occasions for application of rule Preliminary considerations To prove commission of crime Proof of actus reus Need for increased strength in evidence To prove commission by the accused Lack of direct testimony Direct testimony “Hallmark” principle To prove voluntary act of the accused Inference of voluntariness put in issue To prove intention of the accused Purpose Automatism Accused’s state of knowledge Similar fact evidence by the accused Misconduct of person not accused Tender by accused against co-accused F Role of discretion Does the discretion have any role? Origins of discretion Trifling probative value/disproportion between probative force and prejudicial effect Limited role of discretion Meaning of discretion Discretion or rule G Jury direction Invariable requirement Varieties of direction 2 Statutory Provisions — Similar Fact Evidence A The Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 The “uniform” model The terms of the provisions B Other State statutes Queensland, Western Australia, South Australia and others The Queensland, Western Australian and South Australian provisions Crimes Act 1914 (Cth) Police Offences Act 1935 (Tas) Proof of knowledge 3 Civil Cases — Similar Fact Evidence A Principle Similar fact rule or rule of relevance History Survival of similar fact rule Oppression and unfairness Formulations of test B Practical questions and statute Practical problems Irrelevance of surprise Statutes Statutes Chapter Twelve — Evidence by Accused Persons 1 The Silent Accused A Introduction The accused’s position Two options History From Tudor times to 1836 The 1898 compromise B Problems raised by the silent accused Possible courses The background Four courses Comment No prosecution comment The content of judicial comment The importance of the particular circumstances No comment Prohibition on direct and indirect references Duties of counsel 2 The Unsworn Statement of the Accused Abolition of the right 3 The Accused as a Witness A Introduction A compromise The statutory shield Similarities with and differences from other witnesses The peculiar position of the accused B The statutory provisions The terms of the section Evidence Act 1977 (Qld) s 15(2)-(4) The structure of the section The section analysed Plan of exposition C The prohibition Section 15(2) The provision The “uniform” provision Evidence in chief permissible Identifying the prohibited subjects High Court approach to “bad character” The “literal” and “broad” views The meaning of “tending to show”: Jones v Director of Public Prosecutions “Charged in court” The need for relevance D First exception: The matter is relevant Section 15(2) The text expounded South Australia Federal Courts, the Australian Capital Territory, New South Wales, Victoria and the Northern Territory Some problems in s 15(2)(a) Character relevant to credit only Offences and convictions/bad character The purpose of the cross-examination allowed under the first exception E Second exception: The accused’s good character Section 15(2) The text The “uniform” position Examples of what is not “good character” Examples of what is “good character” The meaning of “character” Reputation or disposition The divisibility of the character of the accused Putting half a character in issue The purpose of cross-examination under the second exception Credit or issue F Third exception: Imputations on the character of crown witnesses Section 15(2) The provision The “uniform” provision South Australia Imputations on the character of the prosecutor or the witnesses of the prosecutor A constructional problem Examples “Unnecessary” or “unjustifiable” imputations? Curwood v R Selvey v Director of Public Prosecutions Phillips v R The discretion of the court Specific discretion No bias in favour of accused Discretion to admit or exclude Judicial warning Practice of Crown counsel Purpose of cross-examination under the third exception Tit for tat G Fourth exception: witness against a co-accused Section 15(2) A difficulty and its palliative The provision The rationale for s 15(2)(d) “Evidence against” Six propositions Who is a co-accused? “Same offence” Co-accused’s rights of cross-examination Purpose of cross-examination under the fourth exception Co-accused and prosecution in same position H Fifth exception: Relevant to the defence of a co-accused Difficulties in cross-examining to show innocence Evidence Act 1977 (Qld) s 15(2)(b) I The role of the judge Statutory provisions Statutory provisions Role of counsel J Cth: Evidence Act 1995, NSW: Evidence Act 1995, Vic: Evidence Act 2008, Tas: Evidence Act 2001, ACT: Evidence Act 2011 ss 110–112 and NT: Evidence (NUL) Act 2011 ss 110-112 “Uniform” provisions Special features Chapter Thirteen — Privilege 1 General — Privilege A Introduction A non-discretionary exemption No discretion Exemption from answering, not from attending B Waiver Waiver defined Waiver illustrated Width of waiver Extent of waiver Inadvertent disclosure C Proof by other evidence Other witnesses Means of obtaining evidence Impropriety, equity and inadvertence Discretion D Personal nature of privilege Appeal rights Limited to parties E No adverse inference available Adverse inferences and failures of proof No adverse inference F Effect of upholding the claim The need for justification Damaging effect of successful claim G Protection of confidential nature of disclosed material A middle way Two accommodations The Harman principle Abuse of process 2 Privilege against Self-incrimination A Statement and history of the rule Statement of the rule The rule History of the rule A variety of origins B The operation of the rule Persons who may claim privilege Natural persons Corporations Non-judicial inquiries Extension of the privilege “To answer any question or to produce any document” Privilege against oral and documentary disclosures No privilege for real evidence “If the answer or the document would have the tendency to expose…” Test for claim Warnings and judicial role Protection against damning disclosures “To the imposition of a civil penalty or to conviction for a crime” Penalties Direct and indirect crimination Penalties, discovery and witness statements Forfeiture Adultery C Rationale of the rule Rationale Justifications D Miscellaneous points Other matters Plan of exposition Incrimination of spouse No privilege against spousal incrimination Incrimination under foreign law Foreign law Conduct in same proceedings as those in which privilege is claimed Perjury and contempt E Statutory provisions Abolition of privilege in curial proceedings Abrogation for curial proceedings: general Immunity certificates Executive powers not subject to privilege Clear legislative intention required Other problems 3 Marital Privilege A Privileges abolished Adultery and bastardy Privilege for matrimonial communications Communications during marriage Western Australia, Family Law Act and Queensland B No common law privilege Common law; statutory limitations Common law, statutory limitations 4 Legal Professional Privilege A Statement and history of the rule Statement of the rule The rule History and rationale of the rule The history The rationale B Operation of the rule Communications Protection of communications Lawyer-client communications Third party communications Purpose Dominant purpose Legal adviser External and in-house lawyers Non-judicial investigations Modern extension of the privilege Confidential communications The rule Presence of third party Shared privileges Common interest and joint interest privilege Establishing the privilege Onus Copy documents Copies and translations C Exceptions to the rule Enactments Need for clear words or necessary implication Other exceptions Preliminary Communications to facilitate crime or fraud Facts discovered in the course of the relationship and other exemptions D Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 Client legal privilege The “uniform” legislation E Extending the privilege Other relationships Other relationships 5 Other Confidential Relationships — Privilege A Priests and doctors Priest and penitent Statute Common law Reluctance to compel answers Physician and patient Common law Statute Waiver B Other relationships Professionals, journalists and sexual assault communications New statutory privileges 6 Title Deeds — Privilege A Title deeds Documents of title Common law and statute 7 Statements Made without Prejudice — Privilege A Common law The rule and its illustrations The rule Illustrations Special categories of the privilege “Without prejudice save as to costs” Mediators in family litigation: common law Mediators in family law: statute Limits of the privilege General Contracts and vitiating factors Objective facts having legal consequences B Statute South Australia Statutory privilege and its exceptions Cth, NSW, Tas, Vic and ACT Evidence Acts and NT Evidence (NUL) Act “Uniform” legislation Judicial warning 8 Rules of Court Rules of court — General Procedural issues General New South Wales Civil Procedure Rules r 1.9 New South Wales Civil Procedure Rules Pt 21 Chapter Fourteen — Public Interest 1 Matters of Public Interest A Introduction Definitional issues Preliminary distinctions Nomenclature, waiver, secondary evidence Class claims and contents claims distinguished The problems of public interest claims Damaging effects of successful claim Intermediate courses Persons objecting B Statement and scope of the rule Statement The rule Contexts in which the rule is applied Scope Real and oral evidence Documents not in possession of executive Communications between informants and the state State interest C National security Particular documents and classes of document Military secrets Classes of vital documents Miscellaneous issues Irrelevance of foreign governmental interests Defamation D Other interests of state Public service Impact on public service Other topics Trading interests Inspection E Parliamentary privilege Evidence of parliamentary proceedings Common law and statutory protections F Police matters Internal documents Conway v Rimmer Material received from the public Informers and non-informers “Drying up” argument G Local government matters Local authorities Distinctions among local authority roles H Confidential matters The relevance of confidentiality: principles Principles The relevance of confidentiality: authorities Some cases I Criminal proceedings Informers and other issues Interests of accused; informers Prosecution witness statements Defence access to prosecution witness statements J Statutory prohibitions Secrecy, statute and public policy Protection for public servants K Determining the validity of a claim to exclude evidence under the rule Disposition of analysis Three questions The manner of making claim to immunity Procedures for claiming immunity The determination of the claim The court’s duty Court inspection of documents Principles which govern the determination A balancing but not a discretionary judgment For production Against production L Some uncertain points Procedural questions Miscellaneous problems M Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 s 130 Statutory regimes “Uniform” legislation 2 Miscellaneous Matters Connected with Previous Litigation A Plan of analysis Judges, arbitrators, jurors, advocates Special rules B The evidence of judges of the superior courts Non-compellability of judges Non-compellability, privilege or public policy? C The evidence of arbitrators Arbitrators Compellability and privilege D The evidence of jurors Ban on evidence of jury discussions Jury discussions and other events E The evidence of advocates Advocates Advocates F Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011, Evidence (NUL) Act 2011 s 16 and s 129 Judges and jurors “Uniform” legislation 3 Illegally Obtained Evidence A A dilemna The Problem What is the law? Solutions The English and Scottish solutions The Australian solution Reasons for the Australian solution Australian unfairness discretion for confessions Relevant factors in Australian law Admissions obtained in unlawful custody Admissions obtained from persons under disability Civil cases B Facts discovered in consequence of inadmissible confessions Subsequently confirmed confessions The relevant questions R v Warickshall Other authorities Confessions as real evidence C Evidence procured in consequence of illegal searches and other unlawful acts Illegally obtained evidence Illegal searches Illegalities other than illegal searches D Evidence that is not obtained illegally Improperly obtained evidence Underhand or sharp practices E Evidence of agents provocateurs Entrapment and the like Undercover agents F Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011, Evidence (NUL) Act 2011 s 138 Weighing process “Uniform” legislation Chapter Fifteen — Opinion 1 Nature of the Exclusionary Rule A History, statement and limits of the rule Introduction History of the rule Statement of the Rule Meaning of opinion Double character of opinion evidence Non-opinion expert evidence Non-expert opinion evidence 2 Expert Opinion in Evidence A Antiquity, criticisms and value of expert opinion evidence Nature of expert opinion evidence General aspects B Aspect of specialised knowledge Fields in which expert opinion evidence can be called Exclusion of ordinary experience and unreliable material General acceptance not necessary C Expertise of witness Special study or experience Skill D Identification of assumed facts on which expert opinion is based Assumptions of primary fact Assumption identification rule E Proof of assumed facts on which expert opinion is based Proof of assumptions of primary fact Basis rule F Intellectual basis of opinion Demonstration how opinion was propounded Expert’s reasoning G Other matters Legal practitioner role, expert bias and reliability Function of legal practitioner and expert 3 Non-expert Opinion in Evidence A The rule and its justification The rule The rule and its justification B Examples Illustrations, identification, value Instances of the rule Identification Value 4 Ultimate Issues — Opinion A Expert witnesses The rule propounded The rule and its justification Illustrations of rule Effects of publication Intellectual property Insurance Reformulation of rule Controversies over rule B Non-expert witnesses Non-expert opinion on ultimate issue The rule and its justification 5 Reasons for the Exclusion of Certain Kinds of Evidence of Opinion Explanations for opinion rule Rationale Justifications for opinion rule 6 The Rule Against Hearsay and Evidence of Opinion A The basis rule — General General Non-compliance with the basis rule B The basis rule — Hearsay Non-compliance with hearsay rule Impermissible hearsay elements Permissible hearsay elements Public opinion polls and market surveys Relaxation of hearsay rule 7 Cth: Evidence Act 1995, NSW: Evidence Act 1995, Tas: Evidence Act 2001, Vic: Evidence Act 2008, ACT: Evidence Act 2011 and NT: Evidence (NUL) Act 2011 ss 77–80 A General Structure of legislation Meaning of “opinion” B Section 77 Non-opinion purpose Role of s 136 C Section 78 Non-expert opinion Opinion necessary to understand witness’s perception D Section 79 Specialised knowledge Structure of s 79 Is there a field of specialised knowledge? Does the witness have specialised knowledge? Is the opinion wholly or substantially based on specialised knowledge? Assumption rule, basis rule and intellectual foundation of opinion E Section 80 Exceptions to opinion rule Fact in issue, ultimate issue, common knowledge F Other matters Section 135 Discretionary exclusion Aids to the admissibility of expert reports Form of expert reports Procedural requirements Rules of court and practice notes Certificates Chapter Sixteen —The Rule against Hearsay 1 Statement, Illustration, Development and Rationale of the Rule against Hearsay A Introduction Preliminary Plan of the chapter Plan of the section B Statement of the rule The rule defined Definition of rule against hearsay C History of the rule Hearsay history The origins of the hearsay rule D Rationale of the rule Justifications for the rule Analysis E Formulation of the rule Competing formulations The formulation propounded Other formulations F Hearsay and implied assertions The implied assertion problem Implied assertions illustrated First view: all implied assertions are hearsay Second view: all implied assertions are hearsay and new exceptions should be created Third view: conduct not intended to be assertive is not hearsay Fourth view: no implied assertion is hearsay Fifth view: statements not intended to be assertive are not hearsay unless the statement is about the declarant’s conduct Sixth view: statements or conduct containing an assertion admissible if tendered as a relevant fact or fact relevant to an issue McLelland J’s test and the “uniform” legislation G Hearsay and machine information Calculating devices Analysis H Statements as original evidence Original evidence Definition of original evidence Statements as facts in issue Miscellaneous Operative words Statements as facts relevant to the issue Miscellaneous Statements accompanying a relevant act or event Statements indicative of treatment Statements affecting the weight or credibility of evidence Previous consistent and inconsistent statements 2 Application of the Rule against Hearsay A Introduction Modes of assertion Plan of analysis B Written assertions Express assertions The hearsay ban on express assertions Implications from writing Circumstantial inferences R v Rice Wright v Doe d Tatham Old books, labels, stamps Negative inferences “Negative hearsay” C Oral assertions Introduction Outline of problem Express assertions Examples Implications from statements Examples D Conduct Conduct as hearsay Examples and analysis E Proof by combined testimony of two witnesses Introduction Outline of problem Primary evidence is lacking Car identification Human identification Multiple identification evidence Extent of reception “Photofit” identification The primary witness cannot give intelligible evidence Interpreters 3 Jury Direction —The Rule against Hearsay Requirement for jury direction Need for and content of direction Privy Council position Chapter Seventeen — The Rule against Hearsay: Principal Exceptions at Common Law 1 Statements of Deceased Persons A Introduction Preliminary Structure of chapter Structure of section B Declarations against interest Statement, illustrations and rationale of the exception Statement Illustrations: (a) statements against pecuniary interest Illustrations: (b) statements against proprietary interest Illustrations: (c) no derogation from superior title Rationale Conditions of admissibility Death of declarant Against pecuniary or proprietary interest: general Against pecuniary or proprietary interest: (a) the nature of the interest Against pecuniary or proprietary interest: (b) statement must be presently against interest Against pecuniary or proprietary interest: (c) Prima facie against interest Against pecuniary or proprietary interest: (d) to declarant’s knowledge Against pecuniary or proprietary interest: (e) personal knowledge of facts stated Against pecuniary or proprietary interest: (f) collateral matters Conclusions Possible reform of the law Effect of statute C Declarations in the course of duty Statements, illustrations and rationale of the exception Statement Illustrations Rationale Conditions of admissibility The conditions stated Fact not opinion Duty to act and record or report (a) Specific duty to another (b) Duty must relate to acts of declarant (c) Acts recorded must have been performed Contemporaneity Absence of motive to misrepresent Contrast with declarations against interest Conclusions Possible reform of the law D Declarations as to public or general rights Statement, illustrations and rationale of the exception Statement Illustrations: (a) public rights Illustrations: (b) general rights Rationale Conditions of admissibility Summary Death of declarant Public or general rights Declarations must concern reputed existence of right Declarations must have been made before dispute Competency of declarant’s knowledge Conclusions Preservation in “uniform” legislation E Pedigree declarations Statements, illustrations and rationale of the exception Statement Discussion and illustrations Rationale Conditions of admissibility Summary Death of declarant Question of pedigree Blood relationship Questions of legitimacy and illegitimate relationship generally Legitimation Declaration ante litem motam Conclusions Statute F Dying declarations Statement, illustrations and rationale of the exception Statement Illustrations Rationale Conditions of admissibility Summary Death of declarant Trial for murder or manslaughter Statement must relate to cause of declarant’s death Declarant’s settled hopeless expectation of death Competence of declarant Hearsay upon hearsay Conclusions Impact of statute G Post-testamentary declarations of testators concerning the contents of their wills Statement, illustrations and rationale of the exception Statement Rationale Conditions of admissibility Death of declarant No proof of execution Conclusions Impact of statute H Extra-testamentary statements of testators and testator’s family maintenance Reasons for disinheritance General law and statute 2 Statements in Public Documents A Statement, illustrations and rationale of the exception Statement The rule Illustrations Registers Returns and maps Certificates Rationale Necessity Reliability B Conditions of admissibility Plan of analysis Variety of conditions The definition of a public document Sturla v Freccia Public duty to inquire and record Public matter Retention Public inspection Personal knowledge The different categories of public documents Registers, returns and certificates Conclusions Statute 3 Admissions of the Parties — The Rule against Hearsay: Principal Exceptions at Common Law A Statement, illustrations and rationale of the exception Background The place of informal admissions in the law Statement The rule Illustrations Admissions by words Admissions by conduct Rationale Likely reliability Conditions of admissibility Outline of plan B Capacity of party Personal and representative capacities Consequences of the distinction C Reception of the entire statement Connected material The rule D Personal knowledge Condition of admissibility? Knowledge and expertise E Statements of mixed law and fact Mixed law and fact A controversy F Implied admissions Response to allegations Statements in the presence of a party Two pre-1914 tendencies Role of judge and jury Silence Direction to the jury Co-accused’s statement Nature of the reply The danger of the mechanical approach Documents in the possession or control of a party The principles G Vicarious admissions Introduction General principles Cases in which there is no privity Co-parties Party and witness in former proceedings Cases in which there is privity Predecessors in title Referees Agents Agents’ admissions in general Employer and employee; partners Legal representatives Miscellaneous cases Non-agents Admissions by a deceased Conspirators: general Conspirators: particular rules Extension beyond conspiracy Nominal defendants Husband and wife Infants 4 Confessions in Criminal Proceedings A Statement of the exception Express admissions Two strict rules and three “discretions” Implied admissions B General requirements for admissibility Pressure and inducements Overview Special rules Illustrations of the common law rule C History and rationale of the common law rule Background The pre-1975 law The modern basis of exclusion D Voluntariness General Range of issues Person in authority The inducement Duration of the inducement Queensland: presumed inducement Not obtained by oppression Doctrine and illustrations State of mind of accused Basal involuntariness Other factors affecting voluntariness Coercion, misrepresentation, misunderstandings Challenging truth of confession Burden and standard of proof E Discretionary rejection General “Discretionary” inclusions The nature of unfairness Judges’ Rules The history of the Judges’ Rules Untruth of confession Likelihood of untruth Eavesdropping Relevance of trickery Confession implicating co-accused or implicating accused in other offences Use of confessions involving other accused in other offences Misleading statements Misrepresentations Ill health of accused Weakened physical or mental health Asking a suspect about another’s motives Motive to lie Traps Undisclosed subject of questioning Oppressive questioning Unduly persistent questioning Unsigned records of interview Unsigned records of interview Right to a lawyer Refusal of access to lawyer Interrogation of Aboriginal people Aboriginal suspects Interrogation of children Children General Miscellaneous Discretion to exclude illegally or improperly obtained confessions Instances of exclusion Summary F Silence as a confession The problem of silence Difficulty distinctions G Statutory modifications The jurisdictions classified and summarised Statutory standards Consequences for admissibility of not complying with the statutory standard “Uniform” legislation 5 Miscellaneous —The Rule against Hearsay: Principal Exceptions at Common Law Further exceptions Summary Testimony on former occasions Modes of tendering earlier evidence Previous statements of witnesses Prior inconsistent statements Evidence through interpreters Problems arising from interpretation Evidence of age Avenues to admissibility Ancient documents Reception of ancient documents Reputation Establishment and relevance of reputation Expert witnesses Experts and hearsay Signs on buildings Proof of ownership Postmarks Role of postmarks Identity of telephone callers A developing hearsay exception Proceedings in which the rule against hearsay does not apply Non-application of rule Conclusion Historical works Chapter Eighteen — The Rule against Hearsay: Statutory Exceptions 1 Statutes Equivalent to the Evidence Act 1938 (Eng) A Introduction Plan of chapter Summary B South Australia General The terms of the legislation Exceptions to evidentiary rules other than hearsay rule Exceptions to hearsay rule Definitions Analysis of provisions “Business” and “undertaking” “Document” Duty Personal knowledge Statement of fact Statement of opinion Unavailability of maker or supplier Dispensing with calling maker The “maker of the statement” “Continuous record” “Person interested” Bias and material interest Complete absence of bias Substantial material interest When proceedings are “pending or anticipated” Actual anticipation or reasonable person test? The authentication of the statement Production of original document Inference from form or contents Discretion to exclude Withholding from jury room Weight Corroboration Credibility of maker Inconsistent statements: no leave needed Time of tender Pedigree Conclusions 2 Business and Computer Records —The Rule against Hearsay: Statutory Exceptions A Western Australia Introduction Plan of the section Function and terms of legislation NSW origins of WA statute The function of the legislation The terms of the legislation Definition of key expressions Examples Negative hearsay Some definitions “Business” “Derived” “Document” “Qualified person” “Statement” Safeguards Statements made in relation to criminal proceedings Estimating weight Credibility Discretionary exclusion Corroboration Ancillary provisions Inferences from form or contents Reception notwithstanding other rules Argument against admissibility Survival of other rules of law B Queensland Bankers’ books and business records The provisions Width of provisions Computer evidence The principal provisions Application of ss 96(1), 97–100 and 102 C South Australia Business records Evidence Act 1929 (SA) s 45A Computer evidence Evidence Act 1929 (SA) Pt VIA 3 Miscellaneous Statutory Exceptions to the Rule against Hearsay Further statutory exceptions Taking evidence before trial Pre-trial procedural provisions Copy public documents Statutory removal of common law limitations Convictions Proof of conviction by certificate Other documentary evidence: South Australia Evidence Act 1929 (SA) s 45B Out of court statements by unavailable witnesses: South Australia Evidence Act 1929 (SA) s 34KA Previous consistent and inconsistent statements: Queensland Evidence Act 1977 (Qld) s 101 Statement by child Evidence Act 1977 (Qld) ss 94–100 and 102 Transportation and shipment documents: South Australia Evidence Act 1929 (SA) s 45 Evidence of depositions or earlier statements Pre-trial statements 4 Documentary Evidence: Criminal Proceedings Queensland Introduction General Record relating to any trade or business Trade or business and related issues General exceptions Non-application of hearsay rule 5 Ch 3 Pts 3.2 and 3.4 of the Evidence Acts 1995 (Cth and NSW), 2008 (Vic) and 2011 (ACT), and the Evidence (NUL) Act 2011 (NT) and Ch 3 Pts 2 and 4 of the Evidence Act 2001 (Tas) A The Scope of Hearsay The definition of hearsay as an exclusionary rule Definition of hearsay Effect of s 60 Competence B Exceptions other than admissions Part 3.2: Division 2 — “First-hand” hearsay exceptions Personal knowledge Outline First group of exceptions: civil cases, unavailable representor Evidence of unavailable representor in civil cases Second group of exceptions: civil cases, available representor Outline Section 64(2) Section 64(3) Third group of exceptions: criminal cases, unavailable representor Application of s 65 Section 65(2) in outline Origins of s 65(2)(a) Structure of s 65(2)(b) Structure of s 65(2)(c) Structure of s 65(2)(d) Exceptions in s 65(3)-(6) Exceptions in s 65(8)-(9) Fourth group of exceptions: criminal cases, available representor Terms of s 66 Effect of s 66(1)-(2A) Effect of s 66(3) Fifth exception: contemporaneous statements about a person’s health Section 66A Part 3.2: Division 3 — Other exceptions to the hearsay rule Business records Outline Origins and evaluation Avenues of admissibility Definitions Asserted facts and opinions Computer and other machine-generated information Safeguards Tags, labels and writing attached to or on objects Section 70 Statements in electronic messages as to sender, recipient, date, time and destination Section 71 Aboriginal and Torres Strait Islander traditional laws and customs Section 72 Reputation Section 73 Section 74 Interlocutory proceedings Section 75 C Admissions Scope Definition First hand proof of admissions Sections 81 and 82 Exclusion of admissions against third parties Section 83 Violent, oppressive, inhuman or degrading conduct Section 84 Unreliable admissions in criminal proceedings Section 85 Unsigned records of interview Section 86 Preservation of other legislation Non-repeal of other legislation Admissions made with authority Section 87 Proof of admissions Section 88 Out of court silence Section 89 and related provisions in NSW Exclusionary discretion Section 90 Related provisions Sections 135–136 and 165 6 Evidence Act 1977 (Qld): ss 93B and 93C First hand hearsay of unavailable person Unavailable persons Structure of ss 93B and 93C 7 Criminal Procedure Act 2009 (Vic) Available complainant Previous representations by complainant under 18 Section 377 Chapter Nineteen —The Doctrine of Res Gestae 1 Introduction Organisation of chapter Summary Outline 2 Adelaide Chemical & Fertilizer Co v Carlyle Issues in the case A divergence The facts and the reasoning Starke J and Dixon J compared Ambiguity 3 Four Suggested Exceptions to the Hearsay Rule Associated with the Doctrine A Introduction Summary Outline and underlying basis B Statement accompanying and explaining relevant acts Statement and illustrations of the exception Statement and examples Accompanying statements must be in issue or relevant to the issue Statement must relate to the act it accompanies Contemporaneity Statement must be by the actor C Spontaneous statements relating to an event in issue made by participants or observers Introduction Statement and illustrations of the exception Defects of the traditional law The effect of Ratten’s case Conditions of admissibility Summary Directness Other evidence Rationale and utility D Statements concerning the maker’s contemporaneous state of mind or emotion Statement, illustrations and requirements of the exception The terms and illustration of the rule The requirement of contemporaneity Limited purpose of reception Relevance of intention Prospectant continuance of intention: analysis Prospectant continuance of intention: concoction Previous declarations of intention as evidence of the performance of a subsequent act The Hillmon problem Reported assertions of mental state: original or hearsay evidence? E Statements of contemporaneous physical sensation Principles underlying and examples of the exception Statement and illustrations of the exception The requirement of contemporaneity Miscellaneous Other matters 4 Res Gestae as Original Evidence Original evidence Problems of res gestae and original evidence Examples of original evidence Evidence of opinion received as part of the res gestae Facts received as part of the res gestae Res gestae and other exclusionary rules 5 Statutory Exceptions and Conclusions Statutes and conclusions Statutory exceptions “Uniform” legislation Conclusions Concluding analysis Chapter Twenty — Documentary Evidence 1 Proof of the Contents of a Document A The general rule Introduction Plan of the chapter Statement and illustrations of the general rule Statement Illustrations Types of primary evidence of the contents of a document The original Copy of document requiring enrolment Deemed originals Admission of a party Types of secondary evidence of the contents of a document Secondary evidence B Exceptions to the general rule Exceptions Summary Opponent’s failure to produce document after notice Nature and purpose of notice to produce When service of notice is excused Stranger’s lawful refusal to produce document Stranger’s failure to produce Lost document Failure to find after due search Production of original impossible Physical or legal impossibility Public documents Categories of public document Statutory provisions Statutes other than the “uniform” legislation The “uniform” legislation 2 Proof of the Execution of Private Documents A Proof of handwriting Modes of proof Plan of the section Categories of handwriting evidence summarised Testimonial or hearsay evidence Opinion Comparison B Proof of attestation Attestation Organisation Wills Other documents required by law to be attested History of the present law C Presumptions relating to documents A variety of presumptions Presumptions relating to execution D The Stamp Acts Stamp objections Consequences of non-stamping 3 The Admissibility of Extrinsic Evidence Affecting the Contents of a Document A The conclusiveness of a document as evidence of the terms of the transaction it embodies Adding to, varying or contradicting a document Plan Statement of the rule Various formulations Illustrations of the rule Judicial records Transactions required by law to be in writing Written contracts Exceptions to and cases falling outside the rule Summary Public registers Cases on validity or effectiveness of a document Consideration The real nature of the transaction Capacity of parties Contracts which are collateral, partly oral, or subject to usage Memoranda Proceedings between strangers B Extrinsic evidence in aid of interpretation The problem Resort to circumstances extrinsic to the document being construed Wigmore’s four standards The principal rules of interpretation Plan Wigram’s propositions The inadmissibility of extrinsic evidence to make document The admissibility of extrinsic evidence to translate a document The “matrix” rule The admissibility of extrinsic evidence to prove the existence of persons and things mentioned in the document The inadmissibility of extrinsic evidence to displace a sensible legal or commonly accepted meaning The preference for legitimate relationship The plain meaning rule illustrated The plain meaning rule today The admissibility of extrinsic circumstantial evidence of the author’s intended meaning The admissibility of the author’s extrinsic declarations of intention Equivocation Rebutting certain equitable presumptions Subsequent conduct Admissibility of extrinsic evidence: wills C Conclusions Miscellaneous points Plan Relationship of interpretation to evidence Objects of the rules of interpretation Capricious results Chapter Twenty-One — Proof of Frequently Recurring Matters 1 Foreign Law — Proof of Frequently Recurring Matters A The Principal rules at common law General rules Summary of chapter The rules Judicial notice and previous decisions Does the decision of a court on foreign law bind later courts? B Statutory provisions Commonwealth and State legislation Constitutional and general provisions Recognition of statutory, judicial and other official acts Recognition of documents and certificates admissible in other courts The “uniform” legislation C Expert witness Qualifications, necessity, role The rules 2 Birth, Age, Death, Marriage and Legitimacy — Proof of Frequently Recurring Matters Birth, age, death, marriage, legitimacy Birth Statutory and common law methods of proof Age Summary of methods of proof Direct evidence Hearsay Certificates other than birth certificates Hearsay exceptions: common law and statutory Death Eight methods of proof Marriage Five methods of proving a marriage ceremony Proof of formal validity Expert witnesses and certificates Legitimacy Presumption of legitimacy and hearsay exceptions 3 Judgments and Convictions — Proof of Frequently Recurring Matters Civil and criminal cases Common law and statute Summary Civil cases The “uniform” legislation Criminal cases The “uniform” legislation Proof of identity 4 Miscellaneous — Proof of Frequently Recurring Matters Other matters General Plan of section Custom and usage Four methods of proof Ownership Four methods of proof Proof of what occurred at meetings Admissions, witnesses, minutes Index
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