evidence policy and revision seminar semester 1, 2011 matt hearn

EVIDENCE Policy and Revision Seminar Semester 1, 2011 Matt Hearn

PROBLEM QUESTION REVISION 65%

PROBLEM QUESTION STRUCTURE 1. Introduction 2. Relevance 3. Substantive Issue on Facts 4. Discretionary Considerations to Exclude the Evidence (ss 135 137)

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]

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.

STRUCTURE RELEVANCE Relevance must be covered for every question/piece of evidence Relevance is not irrelevant, but it is not that important

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

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

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

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

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

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

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

Right to Silence Pre Trial At Trial Nb: Need for Weissensteiner? EXAM CHECKLIST: THE COURSE IN 20 MINUTES

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

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

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

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

QUESTIONS?

POLICY REVISION 35%

POLICY EXAM STRATEGY One Hour: First or Last? Hedge your bets Think: Are there any new additions to the reading guide?

TENDENCY AND COINCIDENCE HEARSAY PRIVILEGE

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

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

HEARSAY

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

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)

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

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

Concluding Comments Flexibility v Certainty of Law Generally, are specific exceptions to Hearsay good? Restrictiveness of Australian Approach

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

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

TENDENCY AND COINCIDENCE

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

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

SOME NOTES Practice Exams: Cherry Pick Gans and Palmer

QUESTIONS?

evidence policy and revision seminar semester 1, 2011 matt hearn

Documents

tendency evidence

minutes slide

evidence ss

structure relevance

conclusion slide

important slide

evidence policy

evidence of character