1. Evidence is collected. (This may consist of witness statements documents photographs objects etc.) (Evidence that could have been collected in the Donoghue case is the health inspectors report, the doctors report, and bottle with snail. inspection of site.)2. Evidence is adduced: calls witnesses and tenders documents in support of the case.3 Evidence is admitted/ excluded

Common law rules Evidence law developed largely on common law basis and some Australian jurisdictions still rely principally on colon law rules of evidence. However most have legislated to systematize their rules of evidence by statue Even where statue prevails many common law rules and procedural traditions still apply.Also particular areas of law incorporate rules of evidence E.g. Parole evidence rule in contract; res ipsa loquitur in tort etc.

Uniform Evidence Law (this consist of mirror legislation with only minor variations) Clth act applies to federal courts and ACT courts, until an ACT act comes in to place. State acts apply to state courts

Amendments 1997 NSW added some stuff on confidential communications privilege and sexual assault communications privilege. Journalists privilege was incorporated in the Commonwealth version in Most substantial amendments followed with a major review of UEL in 2005 (see Odgers for summary of changes (Amendments to Clth in 2008) common to force in Jan 2009) Ammendements came in to force in Jan 2009)

Application of UELWhat determines which act applies depends on the which court it is.1 Commonwealth and AC courts: Evedence at 1995 apples( CLth applies to all proceedings in a federal or ACT court, incuding (s4) -Bail, interlocutory hearings

_Specified provisions of the Act Eg Commonwealth records apply to all Australian courts. S 5

Dictionary (see s3) to evidence act 1995 (Clth)Federal court Means the HC or other court created by the Clth parliambt expert territory supremen courts Eg the federal court deferral magistrates court and family court are all federal courts under the ecedece act 1995 (Clth)

This includes tribunals unless exempted from applying laws of evidence Eg Administrative Appeals tribunal, Refugee Review Tribunal are exempted.

ACT Court maens ACT supreme court or other ACT court Eg. Act magistrates court, Act Childrens Court, Act coroners court.

Australian court is defined to include federal, state/ territory courts, judges bodies or persons making adjudications under law.

From Mar 2011 the evidence act 2011 apples to all proceedings in an act courtS4 defines as the Supreme Court

Note the Clt Act also applies to external territories but the ACT act applies in Jervis Bay unde s4a

NSW CourtNsw act applies in Nsw. This incules NSWE SC or any other court created by the NSW parliamanet Eg NSW district court, NSW magistrates court, NSW court of criminal appeal, drug court, land and environment court.

Intepreting the UEL Note the sictionary to ecidence act and the

UEL is not a code. Evidece la does not necessarily exclude other statutory or commonon law principles Evidece ACT 1995 s8 and s9 make provision for the preservation o f various clth, state and territory laws in realtion to proceedings Other UEL actice acts s9 provides that the act does not affect the oeration of a principle or rule of common law or equity so far as in is consistent with the act Acc UEL evidence acts s11 preserves the general powers of courts to control the conduct of court proceedings including inherent powers to prevent the abuse of process. IN all UEL S26 allows a court to make such orers as it considers just in relation to the questioning of witnesses Evidence act 1996 Clth s140(2) standard of proof for civil proceedings provision has been interpreted as allowing resort to common law prinplciles aslo under the Clth act: Booth v Bosworth [2001] FCA 1453. Per branson J at 40Case concerned the appliacation of federal environment laws. It concerned the appliacnts assemsnet of the number of dead fruit bats. The ocurt tuned to the standard of proof for civil proceedings.

Papakosmas v The Queen. Sexual assault case. Per Gleson CJ and Hayne J if the act prupots to deal with a subject then other matters are excluded and the evidence act prevails. Ellis v The Queen. Per Kirby the evidence law was made so we dont have to carry out huge tomes of

Week 1 Lecture 2 S 14 Reduced capacity : Eg Linguistic incapacity where it might cost a S17 f Defedents are beig tried separately they can give evidence agaist each other, but not otherwise. Can also give evidence for the defence.

R v YL Prosecution alleged the child was the victim of abusive behavior by the step mum. The child did not want to give evidence. Prosecution wanted the evidence because there was no other way to get that evidence. The child had separate representation. Representations were made that the childs relationship would be harmed. The judge allowed the child not to give evidence.

Who gives evidence and which evidence -Prosecution has to call on all witnesses including those who dont want to giv evidence or who may not give truthful evidence (R v Apostilides (prdates evidence act) both drinking together with As firend and Bs friend tibbles. Brody and Tibbles left. A replied this is a job for judge and jury I am not saying anything. These two friends werent called to give evidence. Because prosecutor thought that oone of them was in love with the defendant and the other was a friend with criminal past who couldnt be rieled on to help. The HC said it wouldnt appeal and said (if there is a failure to call a witness

Jones v Dunkel. involved road accident on hume highway where the highway used to run as an undived road through. It was unclear wht had happened one of the drivers had died. There were other witnesses other than the sirving driver. He was the employee of defendant Dinkel. D as being so negligence. Little evidence available from the secene. The evidence given by Higgins was vague. Defence said they wouldnt call any witnesses. Before deliberating one juror asked asbout the failure of the D to give evidence. Juror asked whther he could regard the abseces of Higgins as a weakness in the defednants case. Judge didnt clarify the issue. On appeal HC said that Pg 320 CLR failure to bring forward evidence allows an inference that unless the

In criminal prceedings Jones v Dunkel appled mostly to the prosecution. The defendants have a right to silence, none theless inferences can be made in respect of the failure of the defendant to give evidence about facts peculiarly within his knowledge

Weissenteiner v The Wueen W concived tof murder of 2 people. W answerd ad and became a shiphand. For 8 months the Emanuels sailed around the pacific. Only the appelent was contactableon the baot. At his trial W did not testify. Judge instructed jury about what could be inferred from this. Appelant told inconsistent stories about how he got the boat but he always maintained he knew whether the ownders were. The HC said that the fact the D has unique knowledge he is not willing to provide can be used as the baiss of an inference that assits the jury to reach a verdict but cant make up a deficienty in the prosecutors case

To what extend does section 20 abbrogage the common law it was dealt with severalc ses. It appears theat s20 inrespect of W kind of cases and the accused fails to ive evidence an adverse inference is available and judge can assist the jury

Division 3 General rules about witnesses giving evidence. Evidence in ChiefCross examiniation ReexaminationCourts do have power to call witnesses themselves. In exceptional cases. Sharp v

7 Makita (Australia) v Sporwles) expert on the slipperiness of stairs. Found that stairs would be dangerous and the accident was caused by slippery stairs.)

Process 1 expert witnesses often qualified. (asked to give quallifications)

what is the qualification of

1