Admissibility and Exclusion of Evidence in Legal Proceedings, Exams of Law

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Legal Burden vs Evidentiary Burden of proof Evidentiary burden: BRING EVIDENCE. The burden of a party to bring evidence that there is sufficient evidence to raise an issue as the existence of a FII. The party who is making a claim or assertion must be able to prove it with evidence. Legal burden: PROVE THE EVIDENCE to a the standard, or level of proof a party has an obligation to reach to prove a FII (e.g. Crown as to BRD). Judge's Discretion A judge has a discretion to exclude evidence (eg. a confession) on the ground that it is highly prejudicial and not probative (reliable) or for public policy reasons (eg. evidence illegally obtained): Bunning v Cross (1978); s130 Evidence Act 1977 (Qld); ss135-139 EA; R v Christie. Browne v Dunn Rule: Unless notice has been given, Counsel that wishes to contradict a witness by calling other evidence must put that evidence to the witness for their comment. Rationale: Anti-ambush rule for fairness. Allows other party to call evidence so they can explain it. Court can then enjoy joinder evidence/FII. Consequences of non-compliance:

Ethical and evidentiary implications; can be given less weight, denial of right to respond by party/witness, other party may be entitled recall evidence/put rebuttal evidence. Potential mistrial, appeal or jury warning given. Provide an example. Jones v Dunkel [1959] Rule: In certain circumstances, a party that provides an unexplained failure to provide evidence may lead to an inference that the uncalled evidence would not have assisted the party's case. Rationale: Deterrence against parties tempted to withhold evidence; promotes fairness, discourages parties from hiding or suppressing evidence that could weaken their position, and promotes transparency. Provide example. When does Jones v Dunkel not apply? Limited application in criminal proceedings, can be used against Crown. Also does not apply in the appropriate circumstances: 1) when the party is 'required to explain or contradict something' and 2) it is within their power to tender it, and 3) there is no adequate explanation as to failure. Bunning v Cross [1978] Rule: Evidence that was obtained unlawfully/improperly must not be admitted unless the importance/probative value > factors (public interest, unfairness and prejudice). Codified in s138 CEA. Factors are: deliberateness of the conduct, probative value of the evidence, ease with which compliance with law might have been achieved, nature of the offence charged, purpose of the legislative restrictions. Rationale: Striking a balance between enforcing public interest with fair policing/disclosure against exclusion of evidence otherwise not manifestly unfair/prejudicial (eg niche technical points). Operative deterrence against bad policing and reliance on exclusionary rules of evidence. Exclusion of Relevant Evidence

1. R v Christie: prejudicial value > probative value.
2. Unfairness in s 130 EAQ/s 135 EAC. Provide example of each. Admissibility of expert evidence 7 conditions, also in s 79 EAC.
3. Expert opinion is in field of specialised knowledge.
4. Identified aspect of that field which witness is an expert (by training, study or experience.
5. The opinion is wholly/substantially based on the expert's KNOWLEDGE
6. Expert must identify factual assumptions/primary facts which form the opinion (assumption identification rule)
7. Evidence is, or will be admitted that supports the findings of primary fact which are 'sufficiently' like the factual assumptions used by experts (the basis rule)*
8. Must establish facts used on which the opinion is formed.
9. Must be an intelligible scientific/intellectual basis for the opinion demonstrated. Relevance, admissibility and weight Relevance: Evidence is relevant when it tends to prove a FII. Admissibility: Whether certain evidence can be received by the Court. All evidence that is relevant is admissible, subject to exceptions/exclusionary rules. Weight: the persuasion or cogency drawn from the admitted/adduced evidence. Memory refreshing Can be used in certain circumstances during examination in chief:

QLD: - A witness may refresh his memory in court, WITH LEAVE, from a document that was: § made by the witness, or verified by the witness as substantially accurate; § made at a time sufficient contemporaneous with the event (such that it was fresh in their memory); and § where the original can be produced to the court, if required. Commonwealth: Governed by s 32, EAC. Leave required: s 32(1). Books of account s 84 EAQ. Must be used in course of business, document must be ordinary book of account. Admissibility under ss 85-86 EAQ. Commonwealth s69. When burden shifts Legal burden can never shift in criminal cases. Defence (in crime) on BOP. Party that bears risk of non-persuasion does until tribunal of fact decides on issue. (BRD by Crown, BOP by Plaintiff's/Defendants). Lord Denning - the burden on the ultimate issue (ultimate burden) must be distinguished from the burden on the separate issues Commonwealth standard of proof for raising a defence vs Queensland?** "A 'persuasive' [legal] burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to

the accused. An 'evidential' burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt." CF as to EAC ???? Confessions by co-accused Confession by one co-accused is not evidence against another unless admissible as having been adopted by conduct or made vicariously as co-conspirator Rule Against Hearsay Witness testimony must be original evidence of which they have personal knowledge, having perceived it with their senses. A witness making an assertion other than made by the witness themselves is inadmissible of any fact asserted, subject to exceptions. Subramaniam/s 59 EAC). Rationale: not the best evidence, evidence cannot be tested/questioned, unreliable. Non-hearsay purposes Statements explaining an act are admissible, or where witness narrates it for purposes other than truth of its contents cf Subramaniam. A non-hearsay purpose is when the statement is being repeated not to establish its truth, but as evidence of the fact that the statement was made.

Per Cross:

1. Statements as facts in issue: Where issue is whether certain words were written or spoken, not whether they were true.

• "Performative utterances": e.g. giving of oral consent.
• "Operative words": an assertion of intention which has operative effect at the time (e.g. oral offers in contract cases, saying "I do" at a marriage ceremony).

2. Statements as facts relevant to the issue: E.g. assertions relevant to state of mind; evidence of tone of voice used; evidence of love letters kept by accused used to show she had a good relationship with another (not of truth of their terms).
3. Prior consistent and inconsistent statements: Goes to credit (then may be accepted as evidence of the truth of their contents, per s 101, QEA; s 60, CEA). Exceptions to Hearsay Including, but not limited to:

• Statutory documentary hearsay (ss 92-93 EAQ - CF/NB Criminal/Civil distinction)
• Books of account (s 84 EAQ)
• Informal admissions against interest.
• Confessions. Documentary hearsay exception ss 92-93 EAQ. Explain *** Implied Assertions Generally inadmissible, unless for a non-hearsay purpose. Two types of implied assertions

o Those implied from statements not intended to assert a particular fact § Eg a witness hearing X shout "hello, Y!" as evidence of Y's presence o Those implied from conduct not intended to assert a particular fact § A doctor placing a patient in a mortuary van as evidence of death Admissibility as to truth of its contents or not, if former then hearsay. Provide EG when it is admissible. Types of admissions against interest Statement in the presence of a party: a. Admissible if admitted by party's words/conduct (R v Norton) b. Conditional admissibility (R v Christie) c. Only accepted parts are admissible (R v Christie) Silence: a. Implied admission when expected to answer (R v Mitchell) b. No admission if accusation not face-to-face (Fairlie v Denton) c. No admission if police officer/questioning (Hall v R) d. No unfavourable inferences from silence in official questioning (s 89, CEA) Vicarious admissions: a. Rule: Admissible if by those in privity with a party b. No privity: Co-parties, nominal defendants, uninsured drivers, spouses (R v Mallory) c. Privity examples: i. Authorized admissions (s 87(1), CEA) ii. Predecessors in title (Woolway v Rowe) iii. Referrals for information (Williams v Innes) iv. Joint interests (Jaggers v Binnings) v. Agents within scope/agency (City of Port Adelaide) vi. Advocates/legal representatives (R v Turner) Consciousness of guilt or liability

Evidence which shows consciousness of guilt or liability is admissible as an implied admission against interest: Dodd v WA. Lies: The lie must be deliberate and relate to a material issue in the case: R v Lucas. Must be established that the lie was told by the accused for fear of being found guilty if the truth had been told, or because an account consistent with innocence of could not be given: Eade v R. When is evidence relevant? When it has a tendency to prove or disprove a fact in issue. When does Browne v Dunn not apply? When sufficient notice has been given (e.g. pleadings or from opening in case). What is the procedure in admitting hearsay evidence?** Must adduce document (PIS, PCS, book of account, Leave? Identification? When can a court exercise its discretion to exclude evidence based on public policy? Unlawfully obtained evidence (Bunning v Cross) and unfairness under s 130 EAQ. Admissions (generally) · An informal admission by words or conduct made by a party, or those in privity with a party, is admissible evidence against the party of the truth of its contents.

· An admission is any statement, express or implied, oral or written, which is adverse to a party's case. · However, informal admissions may be contradicted or explained away by their maker (then a matter of weight). Admissions and Confessions Confessions are in criminal proceedings: · Two strict rules against o "inducement" o Involuntary in the sense of "basal involuntariness" while subject to discretionary exclusion. Confession includes any inculpatory statement as well as full admission of guilt Admissions, both civil and criminal operate as a hearsay exception (as do confessions) as admissions against interest; with requirements of the admission to admissible and its type. Rationale: "what a party himself admits to be true may reasonable be presumed to be so" Status of evidence not objected to When inadmissible evidence is tendered, or a question is asked which may elicit inadmissible evidence, it is the duty of counsel who opposes it to immediately object o Objection should be made with precision o It is for the tendering party to show the purpose for which the evidence is tendered and how it becomes relevant and admissible Important for counsel to object to evidence, or have judicial ruling to 'get it on the record' in case of appeal. If not objected to, then it falls into dominion of counsel's discretion as to adduce it or not (e.g. simply relying on comments from the bench is not enough, get a ruling on it).

Relationship between admissibility and weight Dixon CJ: "probative value [is never] a question for the judge to decide conclusively" But perhaps a judge can refuse to admit evidence on the ground that it lacks weight: o Concept of relevance o Hoch doctrine - concoction in similar fact evidence - see ss 97-98 EAC which enshrine requirement for judge to consider whether concoction has occurred o s 137 EAC § Probative value and unfair prejudice - the Christie direction - where evidence excluded in circumstances where prejudice outweighs the probative value Enshrined by s 137 EAC Discretion to exclude relevant evidence Unfairness and prejudicial effect > probative value (R v Christie). Unlawfully/Illegally obtained evidence Bunning v Cross. Admissibility is subject to considerations against public interest, fairness and justice. Rules of evidence in chief No leading questions (except for matters not in dispute/introductory etc). Cannot impeach own witness (except for hostile witness (somewhat, but cannot impugn them nb). Evidence must be that of the witnesses (let them tell the story, and guide them along). No PCS (unless exception applies)

Credibility evidence not admissible. Presumption of competency/compellability (except defendant in Crime). May refresh memory from document with leave (subject to requirements). May cross examine witness as to contents of document being used to refresh witness.* ss101-102 EAQ. s101 Witness's previous statement, if proved, to be evidence of facts stated s102 Weight to be attached to evidence Cross-examination rules

• All witnesses can be XE'd
• No improper questions (s21 EAQ and s41 EAC)
• Can only ask questions about if credit if if it materially impair confidence in witness testimony and must be relevant (s 20(1) EAQ; ss 102-103 EAC).
• If accused is in the box, they cannot refuse question that would incriminate them (no longer enjoy right to silence) s15 EAQ (cf s128 EAC)
• Accused cannot be asked about previous convictions without leave (s15A EAQ).
• Finality rule.
• Rule in Brown v Dunn.
• May XE on the document used to refresh memory, without making it evidence (must not go beyond parts of documents used, otherwise hearsay). PIS:
• Witness may be examined about PIS, without showing the document (ss 18-19 EAQ) (cf s43(1) EAC).
• May XE on document s19 EAQ.

Re-examination rules Limited to matters arising from XE. Purpose is to give the witness an opportunity to explain matters which, if left unexplained, would be discrediting: (R v Lavery (No 2)). Can ask about credit: common law; s 108(1), CEA. PCS can be used to re-establish credit if: § to rebut evidence admitted of a prior inconsistent statement: Nominal Defendant v Clements; § to rebut suggestion that witness's account has been devised or constructed, and the prior consistent statement rationally answers that suggestion: Fox v General Medical Council. ss18-19 EAQ s18 Proof of previous inconsistent statement of witness s19 Witness may be cross-examined as to written statement without being shown it Briginshaw standard Standard of proof used in civil cases is the Balance of probabilities, codified in EAC at s

BUT recognising the gravity of the allegation. BOP means "more probable than not" (i.e. better than even odds): Lord Denning. Does not mean a mathematical or mechanical comparison of general probabilities Rule against Opinion Evidence Two categories: Non-expert opinion evidence and expert opinion evidence. Non-expert Witness can only give direct evidence of what they perceived. (codified at s 76 EAC as 'the opinion rule').

Exclusionary rules of evidence (admissibility of evidence) Evidence must pass the relevance rule And cannot infringe (save for exceptions): Hearsay rule Opinion rule Past convictions rule Tendency rule Credibility rule Identification rule Privilege rule Discretionary exclusion rule The exclusionary rules of evidence have exceptions which allow the evidence to be admissible. Exceptions to opinion evidence

1. Expert opinion. Cf opinion rule in EAC.
2. Common knowledge (e.g. witness seeing speed of car, handwriting, experience such as publican assessing inebriation of patron). Opinion relevant as to state of mind. Admissible lay opinion gives efficacy to finding of fact as original evidence (touching on witness perception).

Prior Consistent Statement Not permitted to be raised during EIC unless truth of witness is impugned as recent invention. Sexual assault complaint exception. Ibid in Re-examination. Case splitting EIC cannot case split without leave (generally as to rebut evidence). Prior Inconsistent Statement Can be used in XE:

• May prove that a witness has made a prior inconsistent statement in chief, with leave of the court: ss 17(1). Must first put the matter to the witness and ask if they made such a statement: ss 17(2).
• If witness denies making the statement, may prove it: s 17(2), QEA.
• If witness admits to making the statement, but denies that it's true, may prove the statement: s 17(2), QEA; Lawrie. Best evidence rule Best evidence rule - a party relying on the words used in a document for any purpose other than that of its identifying must, as a general rule, adduce primary evidence of its contents o Typically this means the original Credit Credit refers to a witness's ability to observe or perceive events.

Credibility Credibility refers to the reliability and truthfulness of a witness's testimony. Hostile/unfavourable witness May XE with leave of court for hostile witness. May adduce evidence to show a particular fact for which witness is called and failed to give (s 17 EAQ). Leading questions May be used during XE, subject to rules of improper questions at s21 EAQ. Improper questions Cross-examining the accused in criminal proceedings Accused can't refuse to answer a question or produce a document on the ground that it would tend to incriminate them in the offence charged · Can only attack accused's good character or raise previous convictions in particular circumstances (e.g. where first raised by the accused): s 15, QEA; s 106 (credit) s 110 (character), CEA. Leave required: s 15(3), QEA; s 112, CEA. Unless under a usual credit exception: s 106, CEA. · Where accused is not a witness, see s 108B, CEA.

· If accused denies a previous conviction, it can be proved: s 16, QEA (using process in ss 53-54, QEA); s 110(2)-(3), CEA (using process in ss 178-180, CEA). Queensland: Accused cannot be questioned about certain convictions (where rehabilitation periods apply) without leave of the court: s 15A. Cross-examining on a document Can XE on its documents, s 19: only applies where the witness has in some way verified or adopted the document written by another person. Types of "facts" · Main facts: All those facts a party must prove in order to succeed in their application, or to establish a defence (e.g. causation, damages). · Subordinate or collateral facts: Those facts which may be in issue affecting the credibility of a witness, or affecting the admissibility of certain items of evidence (e.g. facts re the competency of a witness to give evidence, facts surrounding the circumstances in which an admission was made). · Facts as evidence of other facts: Circumstantial evidence - being any fact (an "evidentiary fact") from the existence of which the judge or jury may infer the existence of a fact in issue (the "principal fact"). Finality rule Answers to collateral issues in cross-examination are final, thus cannot contradict by calling further evidence about [fact] unless an exception applies. Why? finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral. Exceptions to the Finality Rule

• Denial of a prior inconsistent statement: s 18, QEA; ss 43, 106(2)(c), CEA.
• Previously lied under oath: Bromley; s 106(2)(e), CEA.
• Bias in favour of one party: Umanski; s 106(2)(a), CEA.
• Corruption: R v Nicholls v Coates.
• Physical or mental instability, or unreliability: Bromley, s 106(2)(d), CEA. Denial of previous conviction: s 16, QEA; 106(2)(b), CEA Evidence in rebuttal · Generally, no party may "split its case" and adduce evidence after it has closed · Evidence in rebuttal is not reopening its case but rebutting the other party's case (e.g. re-calling witness and using PCS cf with using PCS during EIC however, or leading new evidence to rebut). Documentary Evidence General rule: A party relying directly on the words used in a document for any purpose other than identifying it must, as a general rule, adduce evidence of its contents. Example:A landlord's testimony about rent payable under a lease was deemed inadmissible because he was not permitted to speak about the lease's contents without producing it. Indirect hearsay and implied assertions · Generally inadmissible, unless for a non-hearsay purpose. · "Hello X" is indirect hearsay concerning the identity of X: Walton v R. · "Call the fire brigade!" = an implied assertion that there is a fire. Can be overcome by s60 EAC.**

Multiple identification rule Generally, infringement of the hearsay rule even if both the person who observed the event and the person who recorded it give evidence. EG: A cannot give evidence of what B wrote down from notes dictated by A unless A verified it at the time: R v McLean. Admissions against interest An admission against interest is as an out-of-court statement made by a party that is against their own pecuniary, proprietary, or penal interest, and that is admissible under both an exclusion (admission by a party-opponent) and an exception (statement against interest) to the rule against hearsay. Admissions vs. Confessions An admission is a statement, adverse to a parties own interests. A confession includes any inculpatory statement, as well as a full admission of guilt Admissions by co-accused / co-conspirators An out-of-court admission by one person is generally not evidence against another unless it was made pursuant to a joint criminal enterprise, or the co-accused adopts the statement and makes it their own. (R v Spinks) A confession by one co-accused is not evidence against another unless it has been adopted or falls within the co-conspirator rules. (DPP v Shannon) Acts or declarations by one person, acting in preconcert with a party, in furtherance of a common purpose, are admissible as evidence of their truth against the party as an exception to the hearsay rule. (Benbrika v R; s 87(1)I, CEA) The rule applies in all cases in which a common design or purpose is alleged, irrespective of whether there is an actual charge of conspiracy.

Even though the acts and declarations of co-conspirators are incapable of proving participation in an enterprise by the accused, they may be admissible against the accused to prove the nature of the enterprise. (R v Blick) Confessions secured by pressure or inducement Not admissible, unless contrary is shown. Identification* Issues with PIE vs VIE (especially as to EAC). Issues as to previous identifications under multiple identification rule. Requires Domican warning. QLD Evidence Procedure? Chapter 11 UCPR CTH Evidence Procedure Division 30.3 FCR Presumptions Two types: a. Conclusive: Must be accepted unless disproved (e.g. sanity) b. Basic vs. Presumed Fact: Fact inferred from another proven fact Effects: a. Irrebuttable: Cannot be contradicted by evidence b. Evidential burden shift: Rebut presumption without changing legal burden c. Shift both evidential & legal burden

Presumptions of fact: a. Not true legal presumptions; recurring circumstantial evidence (e.g. vehicle speed) b. Example: Ship foundering implies unseaworthiness (Thames & Mersey case) Criminal cases: a. Courts reluctant to use presumptions against defendants for central facts in issue Beyond reasonable doubt Criminal standard of proof. · does not mean "proof beyond a shadow of a doubt" or "certainty", but means the evidence "is so strong against a man as to leave only a remote possibility in his favour": Lord Denning. · However, the defence's legal burden is to be proved on a balance of probabilities: s 141(2), EAC - QLD? Circumstantial evidence vs Direct Evidence Circumstantial evidence is any fact (an 'evidentiary fact') from the existence of which the judge/jury may infer the existence of a fact in issue (a 'principal fact') o Must always be narrowly examined as it may be manufactured: Teper v R (1952, AC) o Usually consists of a number of items pointing to the same conclusion · Contra, direct evidence means: o Testimony as contrasted with hearsay; and o A witness' statement that the witness perceived fact in issue with one of the five senses Original evidence three heads: Original evidence: When a witness narrates another person's statement for any purpose other than to convince the court of its truth.

Statements as facts in issue: In cases where the issue is not whether words were true or false, but whether they were written or spoken, a witness who heard them can testify to them as performing an act by saying the words. Statements as facts relevant to the issue: Assertive statements may be relevant facts in certain situations. If the speaking of words is relevant, a witness can testify that they were spoken. Hearsay only becomes an issue when the words are relied upon to establish a fact. Prior consistent/inconsistent statements of a witness going to the witness' credit: Previous consistent statements are generally original evidence. Inconsistent statements are also generally admissible, except when made by a third party and may be considered an admission. Domican warning "Domican warning": "... where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where reliability is disputed" Means of proof Testimony, hearsay, real evidence R v Christie Probative value > Prejudicial effect as court's discretion to exclude relevant evidence. Who bears the burden of proof?* Evidential burden: The party who has the burden of proof must provide evidence to support their case. If neither party presents evidence, the case is decided in favor of the defendant.

General rule: The party who bears the legal burden of proof also bears the evidential burden. In criminal cases, the prosecution bears the legal burden of disproving defenses, but the defense must provide enough evidence to raise the issue. In civil cases, the proponent of an issue bears the burden of proof but need not anticipate every defense. Legal burden: The burden of proof is generally on the party who initiates the case (plaintiff in civil cases, defendant in criminal cases). The burden may lie with the plaintiff if the fact is essential to the cause of action, or with the defendant if it is simply a denial of an essential element. The burden may also include proving a negative.