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Law Notes Litigation 2 - Evidence Law Notes

Judicial Directions Warnings Info Notes

Updated Judicial Directions Warnings Info Notes

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:

Judicial directions, warning and information

Table of Contents

Judicial directions, warning and information 1

1. The distinction between directions/warnings/comments /summing up 2

2. Comments on silence (Weissensteiner; Azzopardi) 3

3. Unreliable evidence warnings s 165; and Kanaan, Pollitt; McKinney 3

(I) Prelim reqs: Jury trial and request by a party: s 165(2) 3

(II) Does evidence fall within s 165(1) (non-exhaustive) list of categories of evidence of a kind that may be unreliable: 165(1)? 3

a. Hearsay evidence / admission evidence: s 165(1)(a) 4

b. Identification evidence: s 165(1)(b) see below identification evidence 4

c. Reliability affected by age/ill health/injury: s 165(1)(c) (consider when issues of competence have arisen) 4

d. Evidence given by accomplice: s 165(1)(d); Kanaan 4

e. Prison informer evidence: S 165(1)(e); Pollitt warning 6

f. PO W gives evidence of statement not signed by Ds: s 165(1)(f); McKinney 8

g. Persons seeking relief in estate proceedings: s 165(1)(g) 8

(III) If not fall within s 165(1) is it still evidence of a kind that may be unreliable? Court must have special knowledge: Stewart 9

(IV) Exception: where ‘good reasons’ not to give direction: s 165(3); and reasons given: Taranto 9

(V) Content of the warnings to give? S 165(2); s 165(4); Kanaan 10

Nature of s 165(5) preservation 11

4. Corroboration warnings: (s 164 abolished but can be given; Kanaan) 12

5. Warnings for delays in prosecution: s 165B; Longman; Edwards; Tully 13

a. Can give both warnings 13

b. S 165B warning – Delay in prosecution 13

c. Longman warning for delay (retained: s 165B(5)) 15

6. Identification evidence warnings. 16

7. CL broad warning where necessary in interests of justice: Longman 16

8. Warnings in relation to children’s evidence: S 165A (not covered) 16

9. Warnings in non-jury trials 17

Checklist:

  1. Intro: figure out if it was a warning or comment?

  2. Comment on silence? S 20

  3. Unreliable evidence warnings? S 165

    1. Lay out s 165 fundamentals

    2. Consider if evidence falls within s 165(1) categories

    3. If not does evidence still of a kind that may be unreliable under s 165?

    4. Good reasons for refusing a warning: Taranto

    5. Content of the warning to give

  4. Corroboration warnings? S 164, but Kanaan

  5. Warnings for delays in prosecution (s 165B; Longman; Tully; Edwards)

  6. Identification evidence (ss 116, 165, Domican)

  7. Broad CL warnings in interests of justice: Longman

  8. Warnings where all circumstantial evidence: Hodge

  9. Warnings in relation to children’s evidence: s 165A (not covered)

  10. Warnings in non-jury trials.

The distinction between directions/warnings/comments /summing up

Comment – never something that must be accepted. Warnings
  • A comment – simply reminds the jury of matters frequently with common experience which they may ordinarily be taken to know but might have forgotten or overlooked: Crampton v R

    • Judicial comment on the evidence should never appear to be something that must be accepted by jurors. – may need to be accompanied with statement indicating that jurors aren’t obliged to accept commentary.

  • Warnings – derive from special experience of the law: Crampton. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself/herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.

Note: Summing up

  • Summing up - The judge’s summing-up includes a direction as to the ingredients of the offence(s) charged, the relevant law that is to be applied to the facts, and a ‘collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to the evidence’. (R v Zorad (1990) 19 NSWLR 91)

  • Judge should summarise the evidence for all parties and the parties’ submissions clearly, fairly and succinctly and in a balanced manner.

  • No req of artificial perfection: Judge not obliged to compile itemized catalogue of evidence that is capable of law of corroborating an account, nor is a judge obliged to address the competing considerations that relate to all items of evidence: Ngo.

Policy issues:

  • Problems? A single misdirection an amount to a form of miscarriage of justice: Conway

  • Precise effect of a particular instruction can never be known, even though its assumed for practical reasons that a jury obeys the judge’s directions on the law + its application to evidence: Conway

  • Example problem: Any direction framed in terms of it being ‘dangerous or unsafe’ to convict risks being perceived by jurors as a not too substle encouragement by the trial judge to acquit whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care: BWT v R

  • Example – Longway – might be that jury given a longway direction in the form now required likely to reason that judge although stressed that they aren’t to find facts are sending a message that the jury ought to return a verdict of not guilty.

Comments on silence (Weissensteiner; Azzopardi)

Unreliable evidence warnings s 165; and Kanaan, Pollitt; McKinney

Checklist

Unreliable evidence warnings? S 165

  1. Prelim reqs: Jury trial, and request by party: s 165(2).

  2. Consider if evidence falls within s 165(1) categories

  3. If not does evidence still of a kind that may be unreliable under s 165?

  4. Good reasons for refusing a warning? S 165(3) with reasons given: Taranto

  5. Content of the warning to give under s 165(2)?

Intro to s 165 Evidence ‘of a kind’ refers to a particular type or category of evidence rather than the individual witness: R v Baartman; R v Clark
Difference between CL and s 165
  • Caters for jury warning for broad array of evidence of a kind that may be unreliable

  • Not exhaustive in categories

  • Requires a party to request the warning

  • Applies only to jury trials

  • Not limited to where suspect evidence is a ‘significant part of the proof of guillt’ of...

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