Uniform evidence law [2nd edition.]
 9780409340327, 0409340324

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LexisNexis Questions & Answers

Uniform Evidence Law 2ND EDITION • David Field Assists students in uniform evidence jurisdictions to consolidate knowledge through practice and revision questions LexisNexis Questions & Answers: Uniform Evidence Law is designed to facilitate continuous review and preparation for assignments and examinations. It consolidates and reinforces readers' knowledge and understanding of the law of evidence applicable in the uniform Evidence Act jurisdictions. The author provides clear and concise revision guides for each major topic, and a systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of relevant cases and identification of the key issues. All questions are followed by a suggested answer plan, a sample answer and comments on how the answer might be viewed by an examiner. The author also offers advice on common errors to avoid,

and practical hints and tips on how to achieve higher marks.

Table of Contents Ch 1

Relevance, Admissibility and Weight

Ch 2

Burdens and Standards of Proof

Ch 3 Shortcuts to Proof Ch 4 Competence, Compellability and Privilege Ch 5 The Course of a Trial Ch 6 Character, Propensity and Prejudice Ch 7 Hearsay Ch 8 Opinion, Identification and Corroboration Ch 9 Illegally or Improperly Obtained Evidence Ch 10 The Final Hurdle

Related LexisNexis Titles • Peden & Kumar, Lex isNex is Case Summaries: Uniform Evidence Law, 2012 • Ligertwood & Edmond, Australian Evidence , 5th ed, 2010 • Anderson , Williams & Clegg, The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Act, 2nd ed, 2009 [email protected] is.com .au www.lexisnexis.com.au

ISBN 978-0-409-3·

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9 780409 340'

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Dewey Number:

Field, David Uniform Evidence Law. 2nd ed ition. 9780409340310 (pbk). 9780409340327 (ebk). LexisNexis Questions and Answers. Includes index. Evidence (Law)-Australia. 347.9406.

Contents

.' Vtt

Preface Table of Cases Table of Statutes

IX

XIII

1

Chapter 1

Relev;:nce, Admissibility and Weight

Chapter 2

Burdens and Standards of Proof

15

Chapter 3

Shortcuts to Proof

29

Chapter 4

Competence, Compellability and Privilege

43

Chapter 5

The Course of a Trial

61

Chapter 6

81

Chapter 7

Character, Propensity and Prejudice • Hearsay

Chapter 8

Opinion, Identification and Corroboration

121

Chapter 9

Illegally or Improperly Obtained Evidence

143

Chapter 10

The Final Hurdle

165

99

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis.

First edition 2012.

195

Index

This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries shou ld be addressed to the publishers. Typeset in Sabon and Optima LT Std. Printed in China. Visit LexisNexis Butterworths at wwwlexisnexis.com.au

-v-

Preface .' The law of evidence presents students with many challenges. Not only must new technical terms (some of them in Latin!) be learned, but they must also be applied. 'Evidence' is a fluid, everyday application of legal principles, and those teaching it do their best to impart the full flavour of this reality. Unlike other legal subjects, which may be learned and applied in compartments, problem questions in evidence can come glued together like congeqiing french fries, or entangled with each other like a carelessly handled ball of string. All of these factors make evidence a 'problem-based learning' paradise if you are teaching it, and a bottomless pit of nameless, writhing horrors if you are the student. If you are lucky enough to be a member of a well-organised and regularly attended tutorial group, you will receive a limited opportunity to test your skill in applying the principles you have learned in hypothetical practical scenarios. You may even be one of those zealous students who goes in search hip's owners and operators, P and R Line, in a class action. Consider the admissibility of the following proposed items of evidence: (a)

Because of the trauma he suffered, Billy has been sent by his parents to stay with his aunt in Canada, whose address his parents are refusing to divulge. Time allowed: 40 minutes

The oral testimony of Dennis Shoe, a steward on the Titanium, who was serving coffee to the officers on the bridge when he heard the -106-

+

Answer Plan 7-19 Question 3 is a longer question, with more time allowed for answers. All the items of evidence in the question seem to relate to hearsay evidence, and exceptions to the hearsay rule seem to be available in relation to those items under the Uniform Laws. The following critical plan suggests itself:

General overview of the hearsay nature of the evidence Inevitably, in 'disaster' cases such as this the truth of what happened has to be reconstructed from bits and pieces of evidence that are still available, which will often be 'hearsay' in nature. Your answer should, therefore, begin with a general introduction regarding the problems -107 -

Hearsay

Questions and Answers: Uniform Evidence Law

associated with hearsay and the existence of many exceptions to the general exclusionary rule.

Nature of the evidence

(a) Dennis's evidence

In cases of this type, the courts are required to reconstruct the events from the recollections of those who are now dead, seriously traumatised or simply repeating what someone else said. This makes it fertile gr;und for the use of the 'hearsay rule' (s 59 of the Uniform Laws), and the various exceptions to it.

7-20

The oral evidence from Dennis is essentially the statement of Captain Nilssen, and may well be admissible under s 63 of the Uniform Laws as a 'first-hand hearsay' statement by him that was heard by Dennis. It is, of course, an 'implied' assertion (i) that the ship was off course, and (ii) that the navigating officer, Jim, was drunk on duty. However, the plaintiffs will need to notify the defendant under s 67 of the Uniform Laws of their intention to adduce the statement, and the intensity of the likely challenge to its credibility by the defendant might serve to have it excluded under s 136 of the Uniform Laws.

(b) Evidence from Hugh's report The 'evidence' here comes directly from what Hugh observed for himself, and may also be admissible under s 63. However, the plaintiffs will need to justify Hugh's unavailability as a witness, and will be required to give the sames 67 notice as for Dennis. Hugh's evidence may also be challenged under ss 108A, 135 and 136 of the Uniform Laws. Additionally, it may be challenged as mere 'opinion' so far as concerns the under-supply of lifeboats, unless Hugh had made use of a standard test (eg, so many lifeboats per passenger by reference to the number of passengers the vessel was licensed to carry). (c)

Answer

Donna's evidence

Dennis's evidence The 'evidence' from Dennis is, in reality, evidence from Captain Nilssen in the form of an 'implied' assertion (i) that the ship was off course 'and heading for the reef, and (ii) that the navigating officer, Jim, w~s drunk on duty. The fact that all this ::as only i~pl~ed by w~at the captain reportedly said does not prevent it fr?m be10g _hears_ay 10 nature, given that the definition of 'represent_ation' co?ta10ed 10 the Dictionary to the Un~form Laws includes implied assertions as well as ,# express ones. However, Dennis's evidence may be allowed in_to evidence under s 63 of the Uniform Laws as a 'previobs representat10n' made by a person who may 'reasonably be supposed' (s 62 of the Uniform Laws) to have had personal knowledge of what he was asserting. ~Jnder s 63, ~hat the captain said may be recounted to the court by Den~is, vi:ho was a _person who heard' the representation being made, and it will be received as 'first-hand' hearsay evidence of the fa~ts that Nilssen impliedly asserted. 7-21

In order to be able to use Billy's evidence, the plaintiffs will need to justify his absence from the witness box. He clearly will not be 'available' as a witness, and therefore the provisions of s 67 must be followed. In these circumstances, the defendants may well also obtain judicial leave under s 108A to challenge Billy's 'credibility', given his age and the traumatic circumstances in which he said what he did. However, the confusion that is likely to be caused by admitting his statement, and its potential 'unfair' prejudice to the defendant's case, may well invoke the provisions of ss 135 and 136.

The captain is clearly 'not available as a witness' because ?e _is dead: Pt 2 cl 4(1)(a) of the Dictionary to the Uniform Laws. The pla10tiffs must give 'reasonable notice in writing' to the defendant of th~ fact that they intend to use Dennis's evidence in this way: s 67 of the Umform Laws. Having been forewarned of the plaintiffs' intention, the defendant may, however seek the leave of the court to adduce any evidence they may have availabl~ regarding Nilssen's 'credibility' (s 108A of the Uniform_ Laws), if it has 'substantial probative value' in the case, and no_t otherwise. The defendant might also submit, in terms of s 135 of the Umform_Laws, that the trial judge exclude these implied assertions _becau~e ~f thei_r te~dency to be 'misleading or confusing', or because their admiss10n might result in undue waste of time'. This is because it is likely that Dennis will be cross-examined vi?orou~ly regarding the precise facts implied by Captain Nilssen, gi~en their c~ucial relevance to the cause of the tragedy, and their probative value if not vigorously challenged. The grounds for th~ c~allenge will include t~e length of time that has elapsed since the ~nc1den_t, and the trau~atic events that followed, both of which render 1t less likely that Denms can now accurately recall the captain's precise words.

-108-

-109-

As with item (a), the real evidence is what Donna heard from Captain Nilssen, and essentially this was an admission by him that he was not properly accredited to be in command of the vessel. This is information that, it may be reasonably supposed, was known to him personally, and is all the more reliable because it was against his interests to admit it. As such, it constitutes an 'admission', which is exempted, under s 81 of the Uniform Laws, from the normal operation of the 'hearsay rule'.

(d) Billy's evidence

Hearsay

Questions and Answers: Uniform Evidence Law

Evidence from Hugh/s report

be admitted under s 63(2)(a), and will be treated as evidence of the facts that he asserted. Before this may happen, the plaintiffs will have to justify Billy's 'unavailability' by reference to Pt 2 cl 4(1)(e) of the Dictionary to the Uniform Laws, and demonstrate that they have taken 'all reasonable steps' to 'compel' him to attend, but they have proved unsuccessful. Section 67 notice must be given as it was for Dennis's evidence (at 7-21 above), and a 'credibility' challenge under s 108A may be mounted against Billy's evidence on the basis of his age, and the possibility that the trauma he had just endured caused him to be in a state of shock. This: i~ turn, may cast doubt over the reliability of what he was recalling at the time he was interviewed. That same factor may persuade the trial judge to apply the provisions of either ss 135 or 136 (see above) to Billy's evidence.

7-22 The evidence that Hugh could have given, were he available, would have been crucial to the case. All that is left is his written report, which is 'hearsay' if it is offered simply as assertions of fact by Hugh. Since Hugh made 'assertions of fact' regarding something he had seen for himself, his report becomes potentially admissible as evidence of the facts it contains as 'first-hand hearsay' under s 63(2)(b). His unavailability as a witness - like Captain Nilssen (at 7-21 above) - may be justified on the ground that he is now dead. Also as in Dennis's case, the plaintiffs will be required, under s 67, to give 'reasonable' notice in writing to the defendant of their intention to use Hugh's report in this way. As with Dennis's evidence, the defendants may seek the leave of the court to adduce any evidence they may have available regarding Hugh's 'credibility' (s 108A) if it has 'substantial probative value' in the case. One potential issue will be the reason why Hugh was dismissed from his employment (eg, inaccurate reporting), and another may relate to his possible mental instability (the possible reason for his suicide). They may also seek to have the report excluded on the ground that it contains only Hugh's opinion of the suitability of the number of lifeboats. However, the counter-argument may well be that, given Hugh's employment, under of s 61(3) of the Uniform Laws he may be presumed to have had knowledge of what he was writing about (ie, his is an expert opinion admissible under s 79 of the Uniform Laws). Alternatively, it might be argued (if it is the case) that Hugh's alleged 'opinion' was, in fact, mer~ly the application of an agreed mathematical calculation (eg, so many lifeboats per passenger by reference to the number of passengers the vessel was licensed to carry).

Donna/s evidence 7-23 Donna's evidence has much in common with Dennis's, in that she is relating something that was said by Captain Nilssen. However this time the evidence does not take the form of an implied assertion: but of an 'admission' (of the fact that he was not fully accredited to have. c~mmand of the vessel). Section 81 of the Uniform Laws exempts adm1ss10ns from the normal operation of the 'hearsay rule', and Donna's evidence will therefore clearly be admissible.

p

Examiner's Comments 7-25 This is an exercise in writing comprehensively under time constraints and the pressure of exam conditions. In these circumstances, you must resist the temptation to 'cut corners', and, in particular, guard against the urge to fihd a 'quick' answer to each section and move on. The examiner will be assessing pot only your ability to 'pin the tail on the donkey', but also your capacity for taking on board alternative arguments, and subjecting your selected answer to detailed scrutiny. The successful answer will also demonstrate that you have run a 'check list' of possible alternatives through your mind while seeking the answer.

f/fr

~ Common Errors to Avoid· 7-26

You should avoid the following common errors:

• Selecting the first answer that comes into your head, without assessing fully whether your chosen exception to the 'hearsay rule' ticks all the boxes. • Not being honest regarding possible arguments against your chosen exception. • Managing your time poorly in answering the question, probably caused by blind panic as the sheer enormity of what the answer requires becomes increasingly obvious.

,;.~'' Question 4

Billy/s evidence 7-24 The two immediate difficulties with Billy's evidence are his young age and the fact that he may have been in shock when he said what he did. What he said to the television camera has been recorded and the Dictionary to the Uniform Laws includes such recordings within the definition of 'document'.

If wha~ ~illy said ~s to be disclosed to the court by means of playing the telev1s10n recordmg, then clearly his recorded statement will need to -110-

7-27 Bjorn Again is a famous evangelist preacher who is being sued by Godsock Pty Ltd, a religious revival promotional organisation, for failing to attend the Hallelujah and Sign the Direct Debit Form Fair and Expo. The essence of Godsock's case against Bjorn is the content of a telephone conversation that allegedly took place between Bjorn and Godsock's former spiritual grace acquisitions officer, Martha Arthur, in -111 -

Hearsay

Questions and Answers: Uniform Evidence Law

. ' ...... .

..

The first is to be found under s 63 of the Ui;Vform Laws, since Martha had personal knowledge of what she was 'representing'. However, before s 63 may be employed, the fact that she is unavailable as a witness must be explained and justified on one of the grounds specified in the Dictionary to the Uniform Laws. Under Pt 2 cl 4(1)(e) of the Dictionary, it can hopefully be shown that 'all reasonable steps have been taken' to locate Martha with a view to securing her attendance at court, but to no avail. Given the circumstances in which she left the employment of Godsock, this should not present any difficulty. Under s 67 of the Uni arm Laws, Godsock is required to give 'reasonable notice in writing' to Bjorn before s 63 may be employed, unless this is dispensed with by the trial judge.

which, it is claimed, Bjorn agreed to open the fair, and to conduct a 'laying on of hands' in the main marquee at 10 pm each evening for the duration of the fair. He failed to turn up for the opening, and was eventually discovered in a motel over 90 km away in the company of an underage female, three days afterwards. The 'laying on of hands' that he administered on that occasion resulted in criminal charges which did further damage to Godsock's image. Godsock is hampered by the fact that Martha is no longer employed by the company, as the result of her misinterpretation of that part of the gospel which assures followers that 'God helps those who help themselves', leading to her instant dismissal four months ago for helping herself to the contents of the petty cash drawer. No-one from Godsock has heard from her - or wanted to - since her dismissal, and the only record of her conversation with Bjorn is one that she typed into the appropriate file on the 'H' drive of her office computer on the same day that the conversation is alleged to have taken place, which contains the essence of it. May Martha's record of her conversation with Bjorn be admitted?

'

Alternatively, Martha's record may be admitted as part of the record of a 'business' of Godsock under s 69 of the Uniform Laws, because it may 'reasonably be supposed' that Martha had personal knowledge of the facts she was asserting. There is no suggestion that her report was prepared with a view to future litigation, which might otherwise have excluded it. The advantages to Godsock of using s 69 are (i) that it does not have to justify Martha's absence frol]ithe witness box, and (ii) that the provisions of s 67, referred to above, do not apply to s 69, with the result that Godsock does not need to give notice to Bjorn of iis intention to use the record.

Time allowed: 15 minutes

+ N

Whichever section is employed, Martha's credibility may be challenged under s 108A of the Uniform Laws, given the circumstances in which she left Godsock's employment (ie, dismissal for dishonesty). This is a factor that could have been used to attack her credibility had she testified in person, and the section is intended to ensure that the party against whom hearsay documents are being admitte