LLAW3223 EVIDENCE EXAM NOTES

TABLE OF CONTENTS
Oral evidence: 2
Character evidence 4
Propensity 6
Opinion 8
Unreliable testimony (ID and corroboration) 10
Hearsay 13
Admissions/confessions 16
Documentary evidence 22
Real Evidence 27
Essay topics: 30
Burden of proof 30
Common law presumptions 30
Assessment of damages in tort cases 31
Examination of the witness 31
Court's power to dispense with formal proof 34
Undercover agents and entrapment 34
Derivative evidence which confirms involuntary or unlawfully obtained confessions 34

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 5. What kind of evidence is this?
Character evidence?
Witness is the accused?
General info:
The accused is not a competent witness for the DPP and has the choice of not giving evidence at all (right to silence) or
can give sworn evidence. If they decide not to give evidence, the judge must direct the jury of this right so that they do not
assume silence equals guilt.

The accused has the right to silence both before the trial and during the trial UNLESS (RARE):
If the Prosecution case is weak because the accused is the only one with knowledge of what happened & so without this information,
Prosecution could not investigate properly or lead sufficient evidence of what actually happened
Judge may direct the jury that the failure of the accused to give evidence may assist it in evaluating the evidence presented by the prosecution
(Weissensteiner) but the judge can in no way suggest that the failure of the accused to give evidence came from a consciousness of guilt
(Azzopardi)

Good character evidence can be adduced by the accused to show they are unlikely to have committed the crime charged
– however, if they do this the DPP can seek leave to adduce evidence to show the opposite (EA s 18(d)(ii), Rowton;
Attwood). The accused can seek to show evidence about their reputation in the general only.
UEA: s 110(1) – hearsay/opinion etc is allowed re good character evidence; s 112 – must get leave from the Court before
you can cross examine regarding character. S ?? – can have anything/anyone to show GC.

Bad character evidence can be adduced by the DPP in response to good character claims a witness has made about
themselves. However it cannot be used to infer that is it more likely that the accused has committed the crime – only to
dispute their assertion of good character.
Furthermore it will not be admissible if its sole purpose is to demonstrate the accused’s bad character UNLESS the accused
puts their character in issue or if the evidence has been admitted for a particular propensity reasoning/non-propensity
purpose. The protection of the accused from evidence of bad character is ‘The Shield’ – as long as the accused/their lawyer
doesn’t put their character in issue, the accused will not lose the shield and no evidence or questions will be allowed re prior
offending/misconduct/propensity.

Essentially, s18(1)(d) says the accused cannot be asked questions about previous offending or bad behaviour (eg the
Shield), unless:
the evidence is admissible to the issues at trial; s18(1)(d)(i)
he or his advocate has asked questions of a DPP witnesses with a view to establishing the accused’ good character or the s18(1)(d)(ii)
accused gives evidence of his own good character; (ie I would never do that/am not the type to do that)
he has given evidence against another person charged with the same offence (eg co-accused); s18(1)(d)(iv)
Must be a co-accused charged with the same offence, arising from the same factual scenario
Not a mere denial or guilt but must be direct evidence against the co-accused/any evidence which tenders to
‘undermine’ the co-accused’s defence (The Queen v Corak)
Hostile intent is irrelevant (Varley)
Can only be cross-examined by the other defendant, not the prosecutor (generally)
the nature or conduct of the defence includes “gratuitous attacks” on prosecution witnesses and they are not necessary for a s18(2)
proper presentation of the defence case
DPP must seek leave if they think the accused has lost their shield BEFORE beginning their questions.

EXAMPLES OF WHERE CHARACTER WAS IN ISSUE:

Phillips v The Queen said the victim was a marijuana user but this allowed as it related to his explanation of why his fingerprints were on
her flyscreen
Jones v DPP the accused when giving evidence at trial admitted he had been “in trouble” before so the Court held he had already
raised the topic and put his character in issue
P v The Queen P charged with incest & indecent assault of daughter. His evidence of his fundraising activities was “borderline” to
good character, saying his daughter was stealing & he disciplined her (eg resentful & motive for allegations) was
proper conduct of defence case but stating that she was having sex with other people was a “gratuitous” attack on her
and so he lost his shield (but Court held leave should not have been given to XXN d ue to devastating effect)
R v York Prosecutor effectively “entrapped” the defendant into putting her character in evidence; Court scathing about this;
cannot do this just to get in inadmissible evidence

UEA:
s17 competence and compellability of defendants in criminal proceedings
s20; s 89 Right to silence (comment on failure to give evidence); (evidence of silence)
S104 re “gratuitous” attacks on Prosecution witnesses & giving evidence against co-accused (“adverse” only, not “same”)

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 5. What kind of evidence is this?
Opinion
Generally witnesses cannot give evidence in a trial about their personal opinion on any matter; they may give evidence of
fact but not opinion evidence (Smith v The Queen) UNLESS:

1. Person’s opinion is relevant to a matter in issue

Commonly occurs if a party has to hold a certain belief/opinion for the case/charge to be made out ie receiving stolen goods;
assault – anything w/ a mental element
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2. Opinion evidence by lay persons (usually observational inferences)

Observational inferences can be given by witnesses re what they saw/heard/perceived about the matter IF it is necessary
to adequately understand that person’s perception of the matter/event. EG
Sherrard v Jacob: ID of handwriting; persons and things (including ID by voice); apparent age; bodily plight or condition of a person
(including death and illness); emotional state of a person (eg distressed, angry, aggressive, affectionate or depressed);
condition of things (eg worn, shabby, used or new); certain questions of value; and estimates of speed and distance
R v Whitby lay opinion evidence of intoxication is admissible
Smith opinion irrelevant if founded on material no different from material available to jury (unless recognition, see Bilos &
Marsh)
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3. Expert evidence
There are 2 pre-conditions for an expert to qualify:
1. Is the subject matter of the witness’ evidence an area for expert evidence? Put another way, does the judge or jury
need assistance?
Is it one in which the jury/judge could derive assistance from an expert or is it a matter of common
knowledge that they could equally well determine?
Frye Is the matter within a recognised field of expertise, that is, a subject of special study or knowledge?
Is the expert’s opinion founded on rational and demonstrable criteria or is it merely conjectural?
2. Is the expert actually skilled through study and/or experience in that area? Put another way, does the witness have
the necessary expertise to help?
Normally, experts will be in a well recognised field but there is scope to admit evidence of “emerging” science (eg R v
Runjanjic recognising “battered women syndrome” as a new area).
IF ‘EMERGING SCIENCE’:
Does it have “general acceptance” within its field (the Frye test)?
Is the theory “sufficiently reliable” (the Daubert test)?
You can also have “ad hoc” experts due to a particular expertise (eg understanding tape recordings that are
unintelligible to anyone else because you have listened to them so many times)
MUST BE YES TO BOTH 1 + 2 TO BE ACCEPTED AS EXPERT EVIDENCE!
Expert evidence can be admitted via business records (Keogh) and facts on which an expert opinion is based must be
accurate. Experts are permitted to decide the ultimate issue in common law, however this generally does not occur because
it is disliked by the courts.

EXAMPLES OF EXPERT EVIDENCE

Dasreef Pty Ltd dust disease plaintiff called an expert about silica levels but the High Court said the expert did not comply strictly with the
v Hawchar requirements in s79 UEA. Expert gave opinion about numerical level of exposure but their specialised knowledge only
extended to “ballpark” figures; it could not measure or estimate a figure
R v Runjanjic & Two woman charged with false imprisonment & GBH to another woman. Acted under duress of H. Trial judges refused to
Kontinnen allow expert evidence of “battered women syndrome”. CCA said it should have been admitted because it was outside the
jury’s ordinary experiences.
RvC Court held it was not proven their was a scientifically accepted body of knowledge regarding the behaviour of child abuse
victims to continue to associate with their offending parent and not complain. Court also questioned whether this was outside
ordinary experience to require expert evidence
Australian Oil the court refused to permit an expert to testify that ‘allowing water to lie on a steel platform would increase the risk of
Refining someone falling over’. The court ruled this was so obvious that an expert opinion was superfluous.
Lithgow City Jackson (2011) 281 ALR 223: ambulance officers’ lay opinions inadmissible as it was not based on what they perceived
Council
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 IF DOCUMENTARY
1. Is it relevant?
Common law: relevant if admitting the evidence make a material fact more or less likely.
UEA: relevant if evidence is capable of rationally affecting the probability of a fact in issue to some degree (s 55).
Documents have 2 uses:
1. Original evidence – ie the actual contract from a contractual dispute
2. Testimonial evidence – generally inadmissible as is hearsay in a document; will need to find a non-hearsay use for
it to be admissible. Basically if you want it in for the truth of its contents and someone could testify to the same, it is
testimonial use.
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3. Is the evidence privileged?

Privilege belongs to a particular person who may assert/waive it, however a successful privilege application does not
preclude a party from proving facts by other evidence not covered by privilege. The person asserting privilege bears the
legal and evidentiary burden. The standard of proof is BOP.

Legal professional privilege?

Advice privilege – a communication made to enable the client to obtain legal advice
Litigation privilege – a communication made referring to litigation taking place/contemplated by the client
TEST: is the dominant purpose of the communication for the purpose of advice or for use in existing/anticipated litigation?’
(Esso). Rests with the client, not automatic so client must assert it.
To claim it: must have:
Communications (oral & written communications; can be copies; need to consider the purpose of the
document/copy, not the content per se
Confidentiality privilege may be lost if made or provided to a third party
Dominant purpose intended use; the ruling, prevailing or most influential purpose
Professional capacity an independent & qualified legal adviser acting in a professional capacity; relationship; includes
In-House Counsel if independent; not necessary to have current practising certificate

Have they lost their privilege?

Express waiver Has expressly waived it
Implied waiver client engages in conduct that is inconsistent with maintaining the confidentiality that privilege is
intended to protect; can include inadvertent disclosure; can be implicitly waived if relates to state of
mind or citing legal advice in a letter
Inspection of Court has the power to inspect the cis in order to make a decision about whether it is privileged or
documents not – to consider inconsistency between disclosure of information and claim of privilege – but does
not have power to inspect to decide if privilege waived.
Limited waiver waiver for certain proceedings or generally

Can the other party argue on reasonable grounds (Propend) on BOP that the waiver being used for an unlawful/improper
purpose – are they using the waiver with a ‘criminal object in view in his communications’ (R v Cox)?
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Ie fraudulent tax scheme, misuse of Government statutory power, impersonation of a testator

UEA: basically the same:

S 118 (advice privilege): ‘confidential communications for the dominant purpose of the lawyer providing legal advice to the
client’ prove on BOP
S 119 (Litigation privilege) ‘confidential communications for the dominant purpose of the client being provided with
professional legal services related to Court proceedings (or anticipating or pending proceedings) in which the client is, may
be, was or might be a party’ prove on BOP
S 120 Unrepresented parties also get legal privilege
S 121 – 126 – can lose privilege if they have died; by express/implied consent; if they have committed fraud/other offence
or abused a power; if necessary to understand another document

Without prejudice privilege?

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