Evidence B: Revision Questions 1. What is the opinion rule?

Evidence of an opinion is not admissible to prove the existence of a fact of which the opinion relates. 2. What are the three exceptions to this rule? S 77 (Dual purpose), 78 (lay person) and 79 (expert opinion) 3. In what circumstances can evidence of lay opinion be given? Can you provide an example of lay opinion? Can you provide a case(s) in support? If it is based on what they perceive and has to be necessary for them to give the opinion on what they have seen or heard themselves s 78 (a-b) Example - He was about 50 - The look on someones face Look of wanting R v Vandike - a look of wanting which referred to Harvey R v Harvey- sexual gratification was prejudicial because it established a causal link and therefore inadmissible Re v Lithgow council can give lay opinion if it was so fleeting or quick and to give you that opinion evanescent, momentary. 4. Need there be a rational basis for lay opinion? Is there a case in support of your answer? Yes evidenced in R v Penetor- no rational basis in this case 5. What are the requirements of the admissibility of expert evidence? S.79 (1) 1. Must have specialised knowledge based on the persons training, study or experience and the 2. Opinion that is wholly or substantially based on that knowledge. 6. How is specialised knowledge determined? Specialised knowledge = not defined in the evidence act. Defined in common law the word knowledge connotes more than subjective belief or unsupported speculation (R v Hien Puoc Tang *2006+ NSWCCA 167) and the knowledge must be specialised rather than generally held by the community. Got to show the basis for the knowledge. 7. What is the evidential effect of an expert witness going outside his/her area of expertise? The expert MUST NOT give an opinion outside his/her area of specialised knowledge or field of expertise. R v Tang - inadmissible if outside of your area of expertise The opinion rule therefore applies and therefore there is no exception under s76 and will also be irrelevant under s55-56

8. What does S.80 provide? Explain what it means. S.80: Evidence of an opinion is not inadmissible only because it is about: abolished common knowledge rules-only in certain situations a. a)a fact in issue or an ultimate issue; or b. b) a matter of common knowledge Cadbury case the colour purple An expert can't go and say that is clearly negligent or the talk about the ultimate issue. However, an expert can rely on common knowledge to determine their expert evidence. 9. What is S.97 used to prove? Can you provide an example of such evidence? S.97 excludes tendency evidence, that is, evidence of conduct, character or reputation adduced to show a tendency to act or think in a particular way, unless the evidence has significant probative value and reasonable notice has been given. They have a tendency to perform in a certain way and you are thus conforming to your tendency. S. 97 says you cant admit it unless you have given notice and it has significant probative value. In criminal proceedings, under s 101 the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant. R v Joiner [2002] NSWCCA 345 tendency to resort to serious violence against his domestic partners it went to prove that he did have the requisite intent to inflict grievous bodily harm. 10. What is S.98 used to prove? Can you give an example of such evidence? Coincidence rule; S.98 excludes similar fact evidence, which is evidence of two or more events which are so similar in fact and/or in circumstances that it is improbable that they occurred coincidentally - unless the evidence is of significant probative value and reasonable notice has been given. 2 or more events that are so similar in fact and circumstances that it is improbable that they were not related. 11. In criminal proceedings, what requirements must the prosecution satisfy in order to be allowed to bring tendency or coincidence evidence? 12. In criminal proceedings, does the defendant have to satisfy the same requirements? Such evidence cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Evidence Regulation 2010 Reg 5: The tendency and coincidence rule form of notice 13. Think of some phrases to help you determine whether or not evidence is coincidence evidence. hallmarks, trademarks, peculiar modus operandi, striking similarity 14. What does significant probative value mean? Name the case which defines the word significant.

R v Lockyer - means more than mere relevance but something less than a substantial degree of relevance. 15. What are some of the factors you would consider when determining whether or not evidence has significant probative value? To determine significant probative value look at the number of times H did this act, look at the time frame, look at the gaps, look at whether there was any possibility of concoction (to remove concoction have a voir dere and question all the witnesses separately), look at the similarities between the witnesses (i.e. they are all children, they are all related, and he is in a position of authority over them). Likely that the evidence would be deemed of importance. 16. What used to be the test which determined what the words substantially outweigh mean and what was the case? Which case sets out the current interpretation of these words and what is the current interpretation? Fenic if there was no other rational explanation or inference from this evidence other than guilt. R v Ellis is not the test the balancing test substantially outweigh 17. Which section of the Evidence Act 1995 gives an accused the opportunity to adduce evidence of good character? Section 110 18. What is the purpose of adducing evidence of good character? To cast doubt in the juries mind that a person of this character is unlikely to commit the crime of which he is charged. 19. When adducing evidence of good character is it all or nothing? What section of the EA and what case would you rely on in support of your answer? Not all or nothing R v Zurita section 110 (1) - evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. If all you want to do is raise good character in that particular respect i.e. sexual assault, then that is fine. You can split the evidence of good character. 20. How can the Crown adduce bad character of the accused? What sections of the Evidence Act 1995 must be satisfied? Crown can seek leave ((under 112) and the judge must look at 192 to look at appropriateness of the leave) to adduce evidence of bad character to rebut that claim, either under S. 110 (2) generally or under S.110 (3) which limits the evidence to a particular respect of the defendants character. 21. What is the significance of the case Stanoevski v The Queen? The dodgy solicitor who was trying to defraud the NRMA and they tried to use character of her being a lawyer putting forth evidence of a good character and thus the crown wanted rebut that claim. The court gave the crown leave without going to 192 and it turned out that the second set of events went on forever. The factors in 192 set out the effect of giving the leave long trial.

22. In order to ascertain whether or not certain evidence is likely to be admitted, what can a Counsel do in order to properly run their case? Seek an advanced ruling 192 (A) TKWJ v R helps to run the case. Where appropriate, the court will do it. You dont have to do it. 23. Is the character rule subject to any other rules of admissibility (other than relevance)? No. You can bring in evidence of opinion about the character, bolstering of the witness credibility rule, tendency, hearsay rule, doesnt matter. You can anything as regard to character. 24. It is desirable that a direction should be given when evidence of good and bad character is adduced, as to the use to which that evidence should be put. No particular form of words is necessary, but what sort of things should the judge say? Which case is useful when considering the words of the direction? The judge can say that you have a person who is of good character and you can take this into account in deciding whether or not he is guilty of the offence. However, you cannot use bad character evidence in inferring guilt. The bad character is being used to set the record straight, showing that he is not a person of good character who is unlikely to have committed these offences R v OGD. 25. What is the effect of S.95? Is it similar to S.60? Evidence that is relevant for another purpose must not be used in another purpose. This differs from section 60 which is hearsay rule which says that if you can find another purpose for the evidence, it can also be used for the hearsay rule. 26. Provide some examples of evidence which is neither tendency nor coincidence evidence but is relevant for another purpose under S.95. Do you have any cases in support? Relationship evidence setting the scene previous cases of sexual assaults on a child is going in to show the relationship between them and thus cannot be used for tendency. 27. Which case is useful when considering what sort of direction should be given by the judge in a situation where evidence has been adduced because it is relevant for another purpose under S.95? R v OGD evidence went in for an admission and thus could not be used for tendency or coincidence. Very very strict directions must be given to the jury to say they can't use the admission evidence for tendency. 28. Does Part 3.9 Identification Evidence apply to civil or criminal cases? Criminal cases ID evidence is only for criminal cases 29. What does visual identification mean in S.114? Visual identification evidence means identification evidence relating to an identification based wholly or partly on what the person saw, but does not include

picture identification evidence. It includes evidence of both an in court and an out of court identification. 30. When will visual identification be admissible according to S.114? S 114 (2) can't use ID evidence unless a) an identification parade that included the defendant was held before the identification was made; or b) it would not have been reasonable to have held a parade; or c) the defendant refused to take part in a parade, AND the identification of the defendant was without any intentional influence on the witness to identify the defendant. 31. In what circumstances would it be considered unreasonable to hold an identification parade? S 114 (3) a) the kind of offence, and the gravity of the offence, concerned; and b) the importance of the evidence; and c) the practicality of holding an identification parade having regard, among other things: I. if the defendant failed to cooperate in the conduct of the parade--to the manner and extent of, and the reason (if any) for, the failure; and II. in any case--to whether the identification was made at or about the time of the commission of the offence; and d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification e) if it would have been unfair to the defendant i.e he has a very distinct appearance tall, skinny, covered in tattoos and thus he may have been intentionally influenced to identify the accused. 32. What does S.115 provide? Identify someone by photographs kept by the rogues gallery album of the police. Police will only resort to this measure if they can't do an ID parade. ID parade - no rules in NSW at the moment. Process involves trying to get around 10 people similar to the description. 33. What is picture identification evidence? Picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. 34. In what circumstances is picture identification adduced by the prosecutor admissible when the defendant is NOT in police custody when the pictures are examined? What section do you rely on in support? Called the detection period 115 (2) picture id is admissible so long as the photograph doesnt suggest the person is in police custody and that applies to wether they are or are not in police custody. The photograph must not depict that the person is in police custody.

35. In what circumstances is picture identification evidence adduced by the prosecutor admissible when the defendant IS in police custody when the pictures are examined? What section do you rely on in support? Section 115 (5) - when (a) the defendant refused to take part in an identification parade; or (b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or (c) it would not have been reasonable to have held an identification parade that included the defendant. 36. What does S.116 provide? Direction the judge must give the jury if identification evidence is admitted, a direction must be given by the judge to the jury on the special need for caution before accepting identification evidence. If identification evidence has been admitted, the judge is to inform the jury(a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. 37. Why is there a special need for caution before accepting identification evidence? It is unreliable and an honest witness can still make mistakes about identification. The evidence is extremely prejudicial and because the consequences are so severe if the evidence is adduced. 38. Is S.116 mandatory or is it up to a party to request it? Mandatory 39. What does S.165 provide? 165 (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 40. Is identification evidence the sort of evidence considered by S.165? Applies to evidence of a kind that may be unreliable, of which, id evidence is. 41. Is S.165 mandatory or is it up to a party to request it? Party to request it. 42. Depending on the circumstances of the case, what sort of factors would a judge direct a jury may affect the consideration of identification evidence? Darkness or distance, where the person was when they made the observation, the features of the identifying witness (old, poor eye sight, fleeting glimpse, drunk, really tired) - the powers of observation, if there was anything distinctive of the accused,

identification of a different ethnicity, might have picked them out from court, id parade, pictures, the time between when they saw the person and the time they identified it and in the end, the judge always has the discretion to exclude the evidence. 43. What is the effect of S.135? The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) Be unfairly prejudicial to a party; or (b) Be misleading or confusing; or (c) Cause or result in undue waste of time 44. What is the effect of S.136? The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) Be unfairly prejudicial to a party; or (b) Be misleading or confusing 45. What is the effect of S.137? In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant 46. What is the effect of S.138? Exclusion of illegally or wrongly obtained evidence (1) Evidence that was obtained: (a) Improperly or in contravention of an Australian law; or (b) In consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) Did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) Made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned

to make an admission.
47. What factors must the court take into account when exercising its discretion under S.138? (3)

(a) The probative value of the evidence; and (b) The importance of the evidence in the proceeding; and (c) The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) The gravity of the impropriety or contravention; and (e) Whether the impropriety or contravention was deliberate or reckless; and (f) Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 48. What does unfair prejudice mean? It is unfair if the jury are going to start using the evidence in an incorrect way. It is all decided case by case. It has to be unfair prejudice, not just prejudice. 49. When the court is determining the probative value of evidence in S.135 and S.137 is the reliability of the evidence a consideration? What cases are relevant here? 50. What are the differences between S.135 and S.137? 51. In order to claim legal advice privilege under S.118, what must be proved? 52. Who claims the privilege, the lawyer or the client? 53. In order to claim litigation privilege under S.119, what must be proved? 54. What is a confidential communication/document for the purposes of S.118 and S.119? 55. Which section of the Evidence Act 1995 deal with the privilege against selfincrimination? 56. In what circumstances can a witness object to giving evidence about a matter? 57. The court can require a witness to give evidence about a matter over the witness objection. What section gives the court this power and in what circumstances can the court do so? 58. What considerations does the court take into account when deciding to require a witness to give evidence about a matter? 59. What is the effect of a certificate granted by the court? Which section is relevant? 60. If a witness is granted a certificate, but it later turns out that it was granted in error, does the certificate still have effect? Which section is relevant here? 61. If a witness is granted a certificate during criminal proceedings, does the certificate still have effect in a re-trial for the same offence? Which section and what case is relevant? 62. What is the effect of S.131 Evidence Act 1995?

63. What is the definition of an admission? Means a previous representation that is: (a) Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) Adverse to the person's interest in the outcome of the proceeding 64. Which section of the EA permits evidence of an admission to be adduced? Section 81 an admission is admissible and as such, the opinion rule and hearsay rule doesnt apply. 65. There are exceptions to this rule though S.82, S.84 and S.85. a) What does S.82 provide? Exclusion of evidence of admissions that is not first-hand admission must be first hand. (a) It is given by a person who saw, heard or otherwise perceived the admission being made; or (b) It is a document in which the admission is made b) What does S.84 provide? Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) Violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) A threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced. c) What does S.85 provide? Reliability of admissions by the defendant, only in criminal cases. Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) Any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) If the admission was made in response to questioning: (i) The nature of the questions and the manner in which they were put; and (ii) The nature of any threat, promise or other inducement made to the person questioned

66. Which section concentrates on the voluntariness of the admission and which section concentrates on the reliability of the admission? 67. The wording of S.85 was changed after Kelly v The Queen. What did it USED to say and what does the section NOW provide? The section now provides it is much wider then before Kelly v the queen S 85 (1) - This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. 68. What is the definition of an investigating official? (a) A police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) A person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. 69. To what standard of proof must a party satisfy S.84 and S.85? 70. When we refer to the safety net which section are we referring to as regards the admissibility of an admission, and what does it mean? Section 90 discretion to exclude an admission when it is unfair to the D. D can raise this defence and say it is just not fair.