#9232 - Final Doc - Evidence Law

Relevance

Section 56(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding (2) Evidence that is not relevant is not admissible

Section 55(1) EA: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding

1. What is the fact in issue?

   • In a civil matter – facts necessary to be proved for an action to be made out

   • In a criminal matter – facts the prosecution must prove to establish guilt/defence

2. What is the evidence?

   • It may be necessary to identify the type of evidence – direct or circumstantial

     • Direct evidence: Where the only inference drawn by the court is as to the accuracy of its own sensations or those of the witness Example

       1. Observable evidence

     • Circumstantial evidence is that which, even if proved, does not prove the existence of the fact in issue unless an inference is drawn

       1. Circumstantial evidence is permitted, and acts cumulatively Example

       2. Generally used when the particular event is basically unobservable e.g. intention to kill or if there are no witnesses who saw the actual act

       3. Not every piece of circumstantial evidence must be proved beyond reasonable doubt. It is sufficient that on the whole of the evidence there is no reasonable explanation consistent with innocence (for a criminal case) R v Shepherd; Plomb v R

          1. Jury need only understand that they must entertain doubt where any other inference consistent with innocence is reasonably open on the evidence

          1. However, some intermediate steps in the reasoning process may be so crucial that the jury should not convict unless satisfied of their existence BRD R v Shepherd

             1. Only if the evidence consists of links in a chain rather than strands in a cable

3. Assess whether the evidence could rationally affect the assessment of the probability of the existence of that fact

   • What does “rationally affect” mean?

     • An objective test. Does the evidence offered render the desired inference more probably than it would be without the evidence? McCormick (you assume that the assertion is true) Papkosmas v The Queen

       1. Must be some common sense connection between it and the fact we are inquiring into

       2. Test of relevance doesn’t require exclusion of the possibility of something else occurring. The inferential fact need only be one of the possibilities for the circumstantial evidence to become relevant Plomb v R

     • Evidence must provide more information to the jury than that available to them already R v Smith

     • If the logical connection between a fact and the issue is so slight that the fact is too remote, then it is insufficiently relevant (it does not add to or detract from the probability of the existence of a fact) R v Stephenson

     • Can it be relied upon to raise a reasonable doubt? R v Stephenson

     • The strength of the probative value is not considered at this stage; all evidence of probative value can be admitted, even if it is circumstantial or has circular reasoning BBH v R

4. Evidence is not taken to be irrelevant only because it relates only to s55(2)

   • The credibility of a witness; or

   • The admissibility of other evidence; or

   • A failure to adduced evidence

5. Exclusions

   • Section 135: A court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

     1. Be unfairly prejudicial to a party; or

     2. Be misleading or confusing; or

     3. Cause or result in undue waste of time

   • Section 136: A court may limit the use of evidence if there is a danger that a particular use of the evidence might

     1. Be unfairly prejudicial to a party

     2. Be misleading or confusing

   • Section 137: In a criminal proceedings, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant

     • Mandatory

     • Applies only to the prosecutor in criminal cases

Competence and Compellability

• A competent witness – can be lawfully called to give evidence i.e. allowed to give evidence. Concerned about the ability of the witness to function as a witness

• A compellable witness – can be obliged to give evidence i.e. required to give evidence

• A witness is presumed to be competent. Generally if you are competent, you are compellable s12

Competency

• Are they competent? Yes/No

  • Except as otherwise provided by the Act, every person is competent to give evidence s 12(a) EA

  • A person is not competent to give evidence about if fact, if, for any reason 13(1)

    1. They do not have the capacity to understand a question about the fact; or

       • Remember interpreters can be used to help them understand and to adequately reply s 30

       • If the person is deaf or mute the court can give directions so that they can satisfy these sections s 31

    2. Do not have the capacity to give an understandable answer about the fact

  • However just because they are not competent to give evidence about one fact does not necessarily mean they are not competent to give evidence about another fact s 13(2) EA

  • It is presumed, for the purposes of s 13, that the person is competent. The burden of proof is on the party arguing they are not s 13(6)

  • The court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge (based on their training, study or experience) s 13(8)

  • Evidence that has been given by a witness does not become inadmissible because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence s 13(7)

• If they ARE competent, can they give sworn evidence?

  • Unsworn Evidence: A person who is competent to give evidence is NOT competent to give sworn evidence about the fact if they do not have a capacity to understand that, in giving evidence, they are under an obligation to give truthful evidence s 13(3)

    • Do they have the capacity to understand that they are under and obligation to give truthful evidence? If not:

    • In these scenario, they may be competent to give unsworn evidence 13(4) if the court has told the person (5)

      1. That it is important to tell the truth

      2. That he or she may be asked questions that he or she does not know, or cannot remember the answer to, and that he or she should tell the court if this occurs; and

      3. That he or she may be asked questions that suggest certain statement are true or untrue and that he or she should feel no pressure to agree with them if he/she thinks they are untrue

    • Failure to comply may render the witness not competent to give unsworn evidence SH v R

  • If they are capable of giving sworn evidence:

    • A witness giving sworn evidence must take an oath or affirmation s 21. They can choose which one s 23(1), must be informed that they can choose unless they have already been informed or know that they have that choice s 23(2) and can be forced to take an affirmation if they refuse to choose, or can’t take the appropriate oath s 23(3)

    • A person called to merely produce a document or thing need not take an oath or make an affirmation s 21 (If they aren’t sworn in, aren’t open to cross-examination)

    • Requirements for oaths:

      • Not necessary to use a religious text 24(1)

      • Oath is effective even if the person who took it did not understand the nature and consequences of the oath 24(2)(b)

      • Can take oath even if their spiritual beliefs do not include the existence of a god 24A

        • Oath need not include a reference to a god; and may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations

• Children

  • A judge must not 165A(1)

    • warn a jury that children are as a class unreliable

    • or that their evidence is less credible or reliable, or require more careful scrutiny than that of adults

    • or in a criminal proceeding, give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child

  • A judge can give a warning that: 165A(2)

    • The evidence of a particular child is unreliable (and explain why)

    • Warn or inform the jury of the need for caution in determining whether to accept the evidence

    • ONLY if there are circumstances (other than the age of the child) particular to that child that affect the reliability of their evidence

    • Onus is on the party seeking the warning

• Sexual Offences or Serious Assaults

  • Witnesses (child or cognitively impaired)

    • 366(1) Criminal Procedure Act 2009 (Vic) For a witness in a criminal proceeding that relates (wholly or partly) to a charge for

      • (a) a sexual offence or

      • (b) an indictable offence which involves an assault on, or injury or threat of injury, to a person

    • s 366(2) CPA And that witness is

      • (a) under the age of 18; or

      • (b) has a cognitive impairment (includes impairment because of mental illness, intellectual disability, dementia or brain injury) s 3 CPA

    • 367 CPA They may give evidence in chief in the form of an audio or audio-visual recording of the witness answering questions put to him by a person prescribed by the regulation

    • 368 CPA Such recording is admissible as if its contents were the direct testimony of the witness so long as:

      • Notice requirements are complied with; and

      • The accused (and legal practitioner) were given a reasonable opportunity to listen to/view the recording; and

At the hearing the witness attests to the truthfulness of the contents and is available for cross-examination and re-examination

• The court may rule as inadmissible any part of the recording 368(3)

• Complainants (children or...