#8542 - Entire Checklist - Litigation 2 - Evidence Law

1. ACCUSED RIGHT TO SILENCE: s 159 CPA; s 17(2)-(3)-(4); and s 20 (Azzopardi; Wilson) 2

2 RELEVANCE: s 55 (Evans; Neal; Peacock) 2

3 DISCRETIONARY + MANDATORY EXCLUSIONS: ss 135-7(Evans; Shamouil; Mundine; Dyldam; Kennedy) 2

3b procedure: BYD: s 141(1), BOP on voir dire: s 142 (see s 189), judicial not s 144, advance s 192A. 2

4a WITNESS QUESTIONING: s 29, 37, 38, 41, 42, 43 (Aslett), 44, (McCall; Saunders) 2

4b. COMPETENCE AND COMPELLABILITY: ss 13, 14, 17, 18, (Khan) 3

5 – 7. THE CREDIBILITY RULE s 102 – s 108C. (Lodhi; Aslett; KNP v R)) 3

8-12 HEASAY: ss 59-74 (Aslett; Li Wing Cheong (non-hearsay)); s 66(3): Saunders 3

13-14 CHARACTER EVIDENCE (s 110, 111; El-Azzi) – remember to seek s 192A ruling 3

15 Tendency? 97 (for s 97(1)(b): Dao; for s 101: Ford; GAC; OGD;) also consider ss 135-7 4

16 Coincidence? S 98 (procedure: CGL v DPP) - eg Folbig; Makin; Samadi; for s 101: GAC 4

17 Opinion evidence (Partington; Lithgow) also consider s 108C expert opinion on cred. 4

18-19 Identification evidence (unreliable: Forbes), Dhanhoa; Trudgett; s 116: ilioski) 4

20 Judicial warnings, directions and information (Kanaan; Robinson; Edwards) (eg a direction on hearsay evidence given in saunders althought not explicitly under s 165) 5

1. D can give an opening after Crwn: on matters in C’s opening + matters to be raised by D: S 159 CPA.

2. No compulsion: on accused to testify in own trial: s 17. Can testify, but is incompetent to testify as a prosecution witness in his or her own trial: s 17(2) EA. (only for criminal proceedings: s 17(1)). Associated D not compellable to give evidence for or against a fellow D (unless separately tried) but can if court is satisfied that AD knows right under s 17(3) (s 17(4)).

1. Whether it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s55 – if not then inadmissible s 56. Prov rev? s 57. For inferences on documents as to relevance - s 58.

2. Does it go to identifying the accused? Smith; Evans

3. Background evidence: Conway, Clark, Adam, O’Leary – with specific relevance : R v AN

   1. Showing the relationship between the two: Conway, Clark (Eg tense, increases motive)

   2. Showing a relevant state of mind: Conway

   3. If the event is one of a connected series of events (incl offence) that is 1 transaction and transaction cannot be understood without ev of the event and offence in isolation would only be presented in an unreal form, incident admissible: O’Leary; Adam; Serratore; Nguyen; LGW. eg evidence shows continuing state of mind (O’Leary (rampage); Adam (hostile); LGW (sexual))

4. Is it credibility evidence? S 101A, s 55(2)(a), Adam’s Case - Peacock – was both cred and relevant.

1. S 135? (i) assess probative value (without reference to reliability: Shamouil, can include procedural unfairness: Kennedy). (ii) substantially outweighed by (a) unfair prejudice (b) misleading /confusing (c) cause undue waste of time? What if directions given to alleviate (eg use limited by s 136)? Cases: - journal excluded under (c) in Dyldam.

2. S 137 – mandatory exclusion – if the probative value is outweighed by danger of unfair prejudice to the D (even when giving directions and warnings or excluding it for certain purposes etc) (Shamouil)

3. S 136: limits use because of danger that particular use of ev might be unfairly prejudicial to a party or misleading/confusing. Can apply to ev admitted under s 77 or 60 (Roach) but not to defeat purpose (Paps)

1. Examination in chief – ask qs any way you see fit s 29. No leading qs s 37 without leave

2. Unfavorable Ws: s 38 leave: (a) unfavorable (b) no genuine attempt(McCall) (c) PIS. Consider s 38, 192, 135-7, unfair use (Saunders)

3. Cross-examination: (i) limits on qing: s 41 improper s 42 leading qs, (ii) ambit wide (Wakeley),(iii) Browne v Dunn should be complied with Khamis; Copmanhurst (consider obviousness of allegation and remedies); (iv) if XXM on a previous rep s 44, s 56 (v) if PIS s 43 (s 45 applies to both).

4. Re-examination – only on matters raised in XE: s 39, - but no constraints on credibility in XE s 108(1).

5. Re-opening prosecution case: Chin ; s 43(3) can open for a PS.

• Credibility evidence is: Relevant only because it affects cred of a W s 101A(a); or also other purpose for which not admissible (not by ss 135-7): s 101A(b). Excluded: s 102. (eg Peacock: ev that could directly contradict a significant aspect of evidence, even without disproving guilt, relevant to fact in issue + cred.)

1. Exceptions: CE adduced in XE: s 103 “substantially affect assessment of cred of W”, consider circs Lodhi

2. CE adduced in XE against D: s 104 leave required in addition to s 103: For C see (3)-(4), CD (6).

3. CE adduced at any time otherwise than from W to rebut denial in XE of W: s 106 – to prove (a) (b) (c) PIS: as long as person doesn’t agree, includes “don’t recall”: Copmanhurst; Aslett

4. CE adduced to re-establish credibility in re-examination: s 108.

5. CE adduced to re-est. credibility with a PCS of W: s 108(3) (in XIC (s 108(3)(b)) or (in REX (108(3)(a))): KNP: not unfair for Crown to give leave to adduce PCS to re-establish cred in REX where they had to raise all relevant matters including ones that discredited the W in XIC.)

6. CE adduced about a non- W who has made a previous rep admitted in the proceedings: s 108A

7. CE adduced about the D, who isn’t a W, but made a previous rep that’s been admitted: s 108B

8. CE adduced from an expert about credibility of W: s 108C

9. Character evidence? Ss 110, 111.

• S 59 excludes: (i) previously made (ii) rep (iii) by a person, (iv) w/ assertion about a relevant fact (v) reasonable supposed person intended to assert that fact ( from circs. 2A)) + (vi) to prove existence of asserted fact (Subramanian; Wing Cheong).

• When you are not adducing to prove existence of fact: (in Li Wing – to prove not the truth of the telephone calls, but the number of them was to prove subject matter of money); words that give rise to legal consequences (Suteski); credibility evidence (s 56(2)(a)); basis for expert’s opinion (Welsh); translations (Tsang Chi); to establish a state of mind (Subramanian); PRs to prove identification took place (Yates).

• Exception 1#: Hearsay and non-hearsay purpose: s 60; Aslett ; (if yes consider ss 135-7 (Roach))

• Exception 2#: First hand hearsay exceptions: (i) first hand (ii) available/unavailable? Then consider: (a) Crim + maker unavailable, s 65 (+ s 61 competence and 67 notice req) (b) Crim + maker available s 66 (+ 61 competence, ‘fresh’: Aouad; XY) – and not made for indicating what evidence to give: Saunders (c) contemporaneous statement about health, feelings state of mind sensations etc: s 66A (Fortescue).

• Exception 3#: Remote hearsay exceptions (Cvetkovic) (a) bsns res s 69 (Cvetkovic; Lithgow) (b) tags labels s 70 (c) elec. comm s 71 (d) reputation relationships/age s 73 (e) public/general rights: s 74

• Note on documents –may have to infer relevance s 58, prove by s 48 – esp 48(1)(c) transcripts.

• Afterwards – for limitations, exclusions – note that if cannot test maker of PR, that is procedural disadvantage, Roach; Kennedy; which is relevant to both ss 135 and s 137. OR s 136 can be used to limit to non-hearsay purpose: s 136; Roach.

1. Prelim: Relevant? Character evidence? If fits within s 110: Hearsay, opinion, tendency + credibility rule won’t apply.

2. How can D bring up good character? Deliberately: Gabriel; El-Kheir S 110(1) (in EIC or XE).

3. If bad character – how can Crown bring up? Three ways (a) rebuttal (Bartle; R v El-Kheir) (b) XE on rebuttal - Must seek and be granted leave under s 112, s 192: El-Kheir. (c) Use specific exceptions (d) credibility XE

4. If character evidence about an accused – how to bring up? (a) Rebuttal evidence under s 110(2), (3) (b) Lead expert opinion – under s 111 (c) XE on rebuttal or expert opinion – s 112

5. After: Judges directions? Limitations, Exclusions

1. Prelim: Relevance of evidence? To show person has a propensity: Jacara. Ss 55, 56.

2. Rule: Evidence of character, reputation/conduct of person or tendency they have is inadmissible to prove they had a tendency to act in a particular way or have a particular state of mind: s 97(1) – must satisfy notice req, s 97(1)(b), and 101.

3. Tendency rule operate to exclude it? Ie its purpose is to prove tendency. OR: (a) context? (b) o’leary principle applied to show a state of mind? (c) state of mind? (d) admission eg OGD..

4. Exception 1#: to s 97: 94(1) tendency relates only to credibility (2) bail (3) character in issue.

5. Req 1#: reasonable notice given under s 97(1)(a) and s 99.

6. Req 2#: Court thinks it will have sign. probative value: s 97(1)(b) Dao; Ford. note possibility of concoction.

7. Additional Req 3#: if tendency evidence led by prosecution against D: then s 101 (GAC; Ford): Probative value must...