Australian Evidence a Principled Approach to the Common Law and Uniform Acts

Full Title Copyright Preface Acknowledgments Table of Cases Table of Statutes Table of Contents Chapter One: The Fundamental Principles A Procedural Perspective The object of procedural rules The nature of material facts: past events Discovering Past Events The correspondence theory of knowledge The inferential process: Wigmorean analysis Probability theory Outline Mathematical probabilities Classical probabilities Frequency probabilities Subjective probabilities The equations of mathematical probability Problems with conceptualising probabilities mathematically Mathematical probabilities and the standard of proof The non-mathematical approach: ‘inductive probabilities’ and ‘best explanations’ A correct probability approach? The Procedural Environment General considerations The common law adversary trial Structuring the Rules of Evidence Synopsis Chapter Two: The Trial Process The Process in Outline Sources of process The ambit of process Pre-trial process Trial process Appeal Following verdict Interlocutory appeals in criminal cases The Essential Tasks of the Trial Court The reception of evidence Two fundamental principles The nature of relevance Relevance and admissibility Discretion Nature and function at trial The residual exclusionary discretions Efficiency, time and cost Fairness Public policy Determining the reception of tendered evidence Party waiver of rules of admissibility A ‘case to answer’ Proof Degrees of proof The civil standard: balance of probabilities The criminal standard: beyond reasonable doubt Distinguishing the civil and criminal standards Directing the jury on the criminal standard To which facts does the criminal standard apply? Challenging unreasonable verdicts and applying the proviso Proof on the voir dire Conclusion: the inductive approach The Ambit of Evidential Rules Chapter Three: Character Introduction Common law approaches to unreliable evidence Character evidence: one exclusionary principle Character defined in terms of propensity/tendency Reasons for excluding evidence of propensity/tendency The multi-relevance of character evidence Prosecution Evidence Revealing the Accused’s Incriminating Propensity or Tendency The law in principle — an exclusionary presumption The evolution of the common law exclusionary rule The ambit of the common law exclusionary rule Discreditable conduct Discreditable conduct tendered as propensity Relationship evidence Other non-propensity uses HML v R: the ambit unresolved Justifying exceptional admissibility Justification in principle Striking similarity Specifying a required probative value: the Pfennig test Applying the Pfennig test Conclusion: the common law rule and the exclusionary principle Legislation affecting the exclusionary principle The uniform legislation Tendency reasoning Coincidence reasoning The nature of ‘probative value’ under ss 97, 98 and 101 ‘Significant probative value’ ‘Probative value substantially outweighing prejudicial effect’ Western Australia South Australia Queensland Determining probative strength: facts in issue Procedural matters Determining admissibility: notice Determining admissibility: onus Evidence upon which admissibility may be determined Multiple counts Inadvertent disclosure Directions to the jury Defence Evidence Revealing a Co-accused’s Incriminating Propensity Cross-examination of an Accused Disclosing Propensity The accused as a witness: two problems Modification of the privilege against self-incrimination Limiting cross-examination revealing the accused’s character The purpose of the legislative compromise The form of the compromise The extent of the prohibition under the Criminal Evidence Act The first exception: matters establishing facts in issue The remaining exceptions: procedural issues The second exception: good character in issue The third exception: imputations against the character of the prosecutor or prosecution witnesses The fourth exception: evidence against a co-accused Evidence of Accused’s Propensity Tendered by the Defence Bad character of the accused Good character of the accused The nature and purpose of good character evidence Rebutting evidence of good character Directing the jury where good character raised Evidence Revealing the Propensity of a Third Party Defence evidence revealing the character of third parties The character of complainants in sexual assault cases Evidence Revealing Propensity in Civil Actions Where a party’s character is a material fact in issue Other evidence revealing the propensity of a party Evidence revealing the disposition of third parties Conclusion Chapter Four: Unreliable Evidence: Corroboration and Related Rules Introduction Rules of ‘exclusion’ Rules requiring confirmation or warning Testimony Requiring Mandatory Corroboration Testimony Requiring a Mandatory Corroboration Warning The nature of the warning and the testimony embraced by it Accomplices Police testimony of disputed confessions Testimony Requiring Warning Only as a Matter of Practice Children Sexual assault complainants Agents provocateurs (entrapment) Identification evidence The nature and risks of identification testimony The requirement to warn The warning: factors relevant to the reliability of identification evidence Discretionary exclusion of identification evidence The exclusionary rules in the Uniform Acts The effect of supporting evidence on the obligation to warn The cumulative effect of identification evidence The admissibility of out-of-court assertions of identity and pictures used for identification Other unreliable testimony The Nature of Corroborative Evidence Independence Implication in the crime charged Mutual corroboration Functions of Judge and Jury: Directing the Jury Where corroboration or a corroboration warning is mandatory Where a warning is required as a matter of practice to avoid a miscarriage of justice Conclusion Chapter Five: The Adversary Context Access to Information Introduction Rules giving access to information Civil cases Criminal cases The Nature of Rules Restricting Access to Information Adversary Restrictions Upon Access to Information Legal professional privilege (client legal privilege) Two privileges The communications (advice) privilege Lawyers and clients Legal professional advice Confidentiality Bona fides Communication made for the dominant purpose of legal advice Material collected for litigation Limits to legal professional privilege Copies of documents Client’s privilege: waiver Only the communication or work-product is protected The privilege is a bar to access, not a rule of admissibility The public policy limit Statutory removal of the privilege Claims to privilege: some procedural points Legal professional privilege and other rules and privileges preventing disclosure Conclusion The privilege in aid of settlement Justification Scope Costs Criminal cases Waiver: whose privilege? Proceedings in which privilege may be claimed Secondary evidence of privileged admissions Public policy limits Negotiations between estranged spouses Alternative dispute resolution The privilege against self-incrimination Introduction: the adversary rationale Incompetence of accused and spouse as witnesses for the prosecution The accused The accused’s spouse The accused’s right to silence The privilege of the accused not to testify on oath for the defence Comment and direction upon the accused’s failure to testify on oath The privilege of the accused to remain silent when questioned before trial The privilege of citizens to refuse to provide answers or to produce documents that are self-incriminatory Scope Punishment, penalty, forfeiture and ecclesiastical censure Claiming the privilege Legislation affecting the privileges The immunity of judges and jurors from testifying on the reasons for decisions Two adversary restrictions upon the tender of evidence The evidentiary rule flowing from the doctrine of res judicata The rule in Hollington v Hewthorn Public Policy Restrictions Upon Access to Information Introduction Parliamentary privilege Restrictions protecting marriage and family relationships Restrictions protecting other confidential relationships At common law Under legislation Scope and nature Priest–penitent Doctor–patient Counsellors and complainants of sexual assault Professional confidential relationships and journalists’ sources Public interest immunity General nature The public interests involved Nature of immunity Contents claims Class claims Striking the balance: the procedural problems The rejection of otherwise admissible evidence on grounds of public interest Chapter Six: Party Presentation and Prosecution Introduction Burden of Proof: Nature and Incidence Evidential and persuasive burdens The incidence of the burdens in criminal cases The incidence of the burdens in civil cases Legislative allocation of the burdens of proof Presumptions No Case to Answer Theory Criminal cases Civil cases The significance of the opponent’s failure to call evidence Material Facts Determined from Information Presented by the Parties Theory The courts’ power to call witnesses Court intervention into the calling and questioning of witnesses Judicial notice Chapter Seven: The Testimonial Emphasis Introduction Documentary Evidence Definition Authentication Tender of original Real Evidence Testimonial Evidence Outline Witnesses testify upon oath Testimonial formalities The testimony of children and other vulnerable witnesses Formalities and competency Formalities and credit Witnesses testify to facts, not opinions The rule and its rationale Observational inferences Example: sobriety and consequent capacity Expert assistance in drawing inferences: a functional approach Threshold tests at common law for expert knowledge Liberal relevancy Sufficient reliability determined by the court General acceptance within the relevant scientific community: Frye and Daubert Current Australian position At common law Under the uniform legislation Ad hoc experts Two illusory tests of admissibility Common knowledge Ultimate issues and legal standards Procedural aspects Adversarial presentation of expert testimony Establishing the admissibility of expert testimony: the voir dire Form of expert assistance Establishing primary facts through admissible evidence General expertise not subject to proof The opinions of Aboriginal and Torres Strait Islander groups under the uniform legislation Facts and inferences are ultimately decided by the trier of fact Witnesses testify orally from memory Memory and its refreshment In-court refreshment of memory Out-of-court refreshment of memory Prior statements of witnesses General rule: prior consistent statements inadmissible Exception: prior statements rebutting alleged invention Exception: prior statements identifying accused Recent complaints in sexual assault cases Statements induced by hypnosis Questioning witnesses Examination-in-chief Scope and purpose: the bolster rule The prohibition against leading questions Hostile and unfavourable witnesses Cross-examination The right to cross-examine Issue cross-examination: introducing evidence Issue cross-examination: satisfying the rule in Browne v Dunn Credibility cross-examination Pursuing credit/credibility beyond cross-examination the general prohibition Exceptions to the general rule Cross-examination on documents Re-examination Chapter Eight: Hearsay Scope of the Hearsay Rule Rationale and definition Out-of-court ‘statements’ Statements tendered as assertions Narrative statements Assertions part of the res gestae Assertions of knowledge, belief and intention Assertions of physical sensation and health The availability of the maker of an out-of-court statement Machine-generated information Exceptions to the Hearsay Prohibition Common Law (and Related Statutory) Exceptions The so-called res gestae exceptions: spontaneous statements Out-of-court statements by persons since deceased (or otherwise unavailable) Statements against interest Statements in the course of duty Statements as to public or general rights Statements by relatives as to pedigree Dying declarations Post-testamentary statements by testators about the contents of their wills Statements in public documents Admissions and confessions Terminology and the rationale for a hearsay exception Defining admissions and confessions Personal knowledge of admitted facts Self-serving statements Parties and their privies: vicarious admissions and confessions Vicarious admissions and confessions: the co-conspirator rule Confessions and admissions in criminal cases The rules and their rationale The voluntariness requirement The fairness discretion Unfairness as the unacceptable risk of wrongful conviction Unfairness as procedural impropriety The public policy discretion Criminal investigations: standards of propriety Excluding for impropriety Appeals Determining the reception of confessions: the voir dire Statutory Exceptions to the Hearsay Rule Introduction The English approach and its variations Legislation based on the Evidence Act 1938 (UK) Legislation derived from the Criminal Evidence Act 1965 (UK) Other legislation admitting hearsay evidence in criminal cases Business records A more liberal approach to documents: South Australia Computer output Bankers’ books and other books of account Transportation documents The Uniform Legislation The definition of hearsay Exceptions to the prohibition First-hand hearsay Business records Other exceptions Index