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Law Notes Litigation 2 - Evidence Law Notes

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Litigation 2 - Evidence Law Notes

Litigation 2 - Evidence Law

Approximately 259 pages

These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation 2 - Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

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

  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)).

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

  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.

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

  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)

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

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

  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.

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

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

  • 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...

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