Uniform Evidence

Description

Uniform Evidence Second Edition is a clear and concise introduction to the rules of evidence, as they apply to Australian courts. Written in an engaging and accessible style, the second edition covers all uniform evidence law jurisdictions including the courts of the Commonwealth, New South Wales, Australian Capital Territory, Victoria, Tasmania and most recently the Northern Territory. The book explains and critiques uniform evidence law in an accessible and student friendly style, with case examples to illustrate the practical applications of uniform evidence law and flowcharts to clearly summarise complex legal rules and issues. CONTENTS Preface Acknowledgments Table of Cases Table of Statutes CHAPTER 1: UNIFORM EVIDENCE LAW 1.1 Evidence law 1.1.1 Promoting accurate fact-finding 1.1.2 Competing goals 1.2 Uniform law 1.2.1 Application 1.2.2 Development 1.2.3 Accessibility 1.3 Other laws 1.3.1 Other statutes 1.3.2 Common law 1.3.3 Overseas law 1.3.4 Human rights law PART 1: ADDUCING EVIDENCE CHAPTER 2: WITNESSES 2.1 Competence and compellability of witnesses 2.1.1 Sworn and unsworn evidence 2.1.2 Tests for competence 2.1.3 Compellability 2.1.4 The defendant in criminal proceedings 2.1.5 The defendant’s family 2.2 Failure to call witnesses 2.2.1 Civil proceedings 2.2.2 Criminal proceedings 2.2.3 The evidential significance of the defendant’s failure to testify 2.3 The examination of witnesses 2.3.1 Manner and form of questioning 2.3.2 The role of the judge 2.3.3 Examination-in-chief 2.3.4 Cross-examination 2.3.5 Re-examination 2.3.6 Special arrangements for testifying CHAPTER 3: DOCUMENTARY AND REAL EVIDENCE 3.1 Documents 3.1.1 The purposes for which the contents of documents can be adduced 3.1.2 What is a document? 3.1.3 Secondary evidence of the contents of a document 3.1.4 Authentication of documents 3.2 Particular kinds of documents 3.2.1 Audio and video recordings 3.2.2 Photographs 3.2.3 Maps, models, charts and diagrams 3.2.4 Computer-generated evidence 3.2.5 Voluminous and complex documents 3.3 Real evidence 3.3.1 Introduction 3.3.2 General principles 3.3.3 Physical objects 3.3.4 Views PART 2: ADMISSIBILITY CHAPTER 4: RELEVANCE 4.1 The fundamental rule of evidence 4.1.1 Definition of relevance 4.1.2 Relevant to what? 4.1.3 How much of an effect on the probabilities? 4.2 The different ways in which evidence can be relevant 4.2.1 Direct evidence 4.2.2 Circumstantial evidence 4.2.3 An illustration of the difference 4.3 Applying the test of relevance 4.3.1 A matter of common sense 4.3.2 Spelling out the connections 4.3.3 Decisions on relevance 4.4 Provisional relevance CHAPTER 5: THE HEARSAY RULE 5.1 Rationale for the hearsay rule 5.1.1 The law’s response 5.1.2 Justification for the retention of a hearsay rule in the uniform evidence legislation 5.2 Scope of the hearsay rule 5.2.1 Hearsay defined in section 59(1) 5.2.2 ‘Representation’ 5.2.3 ‘Previous representation’ 5.2.4 ‘Made by a person’ 5.2.5 Hearsay uses of a previous representation 5.2.6 Non-hearsay uses of a previous representation 5.2.7 The requirement of intention 5.2.8 Establishing intention 5.3 Contemporaneous mental and physical states 5.3.1 Inferring mental and physical states 5.3.2 Inferences from physical and mental states 5.3.3 Limitations on section 66A 5.4 Evidence relevant for a non-hearsay purpose 5.4.1 Section 60(1) 5.4.2 Second-hand hearsay and admissions 5.4.3 Interaction with other exceptions 5.4.4 Using the discretions to limit the use of evidence admissible pursuant to section 60 CHAPTER 6: HEARSAY EXCEPTIONS 6.1 The role of hearsay exceptions 6.1.1 Rationale for hearsay exceptions 6.1.2 Development of the exceptions 6.1.3 Effect of the exceptions 6.1.4 Limiting the exceptions 6.2 First-hand hearsay 6.2.1 General requirements for first-hand hearsay 6.2.2 First-hand hearsay in civil proceedings 6.2.3 Representations of testifying witnesses in criminal proceedings 6.2.4 Other first-hand hearsay adduced by the defence 6.2.5 Other first-hand hearsay adduced by the prosecution 6.3 Remote hearsay 6.3.1 Business and other routine records 6.3.2 Descriptions of objects and messages 6.3.3 Evidence of reputation and traditions 6.3.4 Evidence in interlocutory proceedings CHAPTER 7: OPINION 7.1 The opinion rule 7.2 Permitted opinions 7.2.1 Necessary communication of eyewitness perceptions 7.2.2 Opinions substantially based on specialised knowledge 7.2.3 Other opinions 7.3 Managing expert opinions 7.3.1 Subject-matter 7.3.2 Foundational facts 7.3.3 Communication CHAPTER 8: ADMISSIONS 8.1 Adverse inferences 8.1.1 Adverse inferences from a party’s previous representation 8.1.2 Adverse inferences from a person’s silence 8.2 Excluding admissions 8.2.1 Scope of the exclusionary rules 8.2.2 Oppressive influences 8.2.3 Potential unreliability 8.2.4 Unfair use 8.3 Proving admissions 8.3.1 Requirement for first-hand evidence 8.3.2 Requirements for written admissions 8.3.3 Requirement for electronic recordings 8.3.4 Proof of admissibility CHAPTER 9: JUDGMENTS AND CONVICTIONS 9.1 The exclusionary rule 9.2 Exceptions to the rule CHAPTER 10: TENDENCY AND COINCIDENCE 10.1 Tendency and coincidence reasoning 10.1.1 Tendency reasoning 10.1.2 Coincidence reasoning 10.1.3 Pattern reasoning 10.1.4 Other circumstantial reasoning 10.2 The exclusionary rules 10.2.1 Notice 10.2.2 Significant probative value 10.2.3 Exceptions to the tendency and coincidence rules 10.3 Tendency evidence about rape complainants 10.3.1 Scope of the rape shield laws 10.3.2 The exclusionary rules 10.3.3 Permitted reasoning about sexual behaviour CHAPTER 11: CREDIBILITY 11.1 The nature of credibility evidence 11.2 The relevance of credibility evidence 11.3 The admissibility of credibility evidence 11.3.1 Overview of the credibility rules 11.3.2 Scope of the credibility rules 11.3.3 The distinction between relevance to credibility and relevance to issue 11.3.4 Distinguishing between credit and issue 11.4 Cross-examination as to credibility 11.5 Rebutting denials by other evidence 11.5.1 The general rule 11.5.2 Exceptions to the rule 11.5.3 Triggering the operation of the exceptions 11.5.4 Applying the exceptions 11.5.5 Rebutting the rebuttal 11.6 Rehabilitating credibility 11.6.1 Re-examination 11.6.2 Prior consistent statements 11.7 The credibility of hearsay 11.8 Expert evidence 11.9 The credibility of complainants in sexual offence trials 11.9.1 Delay 11.9.2 Sexual history evidence CHAPTER 12: CHARACTER 12.1 Tendency and coincidence evidence about the defendant 12.1.1 Probative value 12.1.2 Prejudicial effect 12.1.3 The exclusionary rule 12.1.4 Tendency and coincidence evidence about sexual offence defendants 12.2 The defendant’s credibility 12.2.1 The defendant’s character shield 12.2.2 Loss of the character shield 12.3 The defendant’s character 12.3.1 Proving good character 12.3.2 Proving lack of good character 12.3.3 The character of co-defendants 12.4 Managing character evidence in jury trials 12.4.1 Managing information 12.4.2 Managing trials 12.4.3 Managing reasoning CHAPTER 13: IDENTIFICATION 13.1 Identification evidence 13.1.1 Definition of ‘identification evidence’ 13.1.2 The dangers of identification evidence 13.1.3 Mandatory warning 13.2 Identification procedures 13.2.1 Identification parades 13.2.2 Picture identification 13.2.3 Discretionary exclusion CHAPTER 14: PRIVILEGES 14.1 The law of privilege 14.1.1 Powers to compel disclosure 14.1.2 The public policy basis of the law of privilege 14.1.3 Effect of a claim of privilege 14.1.4 Scope of the uniform evidence legislation privileges 14.2 Professional confidential relationship privilege 14.3 Journalist privilege 14.4 Sexual assault counselling privileges 14.5 The privilege against self-incrimination 14.5.1 Justification for the privilege 14.5.2 Scope of the privilege 14.5.3 Determining the claim 14.5.4 Overriding the privilege 14.5.5 Criminal defendants 14.5.6 Corporations 14.6 Evidence of matters of state 14.6.1 The nature of section 130 14.6.2 The interest in non-disclosure 14.6.3 The interest in disclosure 14.6.4 The balancing exercise 14.6.5 Court inspection 14.7 Evidence of settlement negotiations 14.8 Other privileges CHAPTER 15: CLIENT LEGAL PRIVILEGE 15.1 Justification for the privilege 15.2 Scope of the privilege 15.2.1 Confidential communications and documents 15.2.2 The first privileged purpose—providing legal advice: section 118 15.2.3 The second privileged purpose—litigation: section 119 15.2.4 Unrepresented parties 15.2.5 The dominant purpose test 15.2.6 The making of an objection 15.2.7 Client and lawyer 15.2.8 Copies of unprivileged documents 15.3 Loss of privilege 15.3.1 General loss of privilege 15.3.2 Acting inconsistently with the maintenance of the privilege 15.3.3 Evidence relevant to the defence of the accused in criminal proceedings 15.3.4 Joint clients 15.3.5 Misconduct 15.3.6 Related communications and documents CHAPTER 16: DISCRETIONARY AND MANDATORY EXCLUSIONS 16.1 Nature of discretion 16.1.1 The role of the discretions in the uniform evidence legislation 16.2 The general discretion to exclude evidence 16.2.1 Probative value 16.2.2 Prejudicial effect 16.2.3 The balancing exercise 16.2.4 Misleading or confusing evidence 16.2.5 Time-wasting evidence 16.3 General discretion to limit use of evidence 16.4 Exclusion of prejudicial evidence in criminal proceedings 16.4.1 Application of the discretion 16.4.2 Alternatives to exclusion 16.4.3 Broader considerations of unfairness 16.5 Discretion to exclude improperly or illegally obtained evidence 16.5.1 Rationale for the discretion 16.5.2 Illegality or impropriety 16.5.3 Connection with illegality or impropriety 16.5.4 Operation of the exclusionary discretion 16.5.5 Relationship between sections 138 and 90 16.5.6 Application of the discretion: Covertly recorded admissions PART 3: PROOF CHAPTER 17: THE BURDEN AND STANDARD OF PROOF 17.1 The burden of proof 17.1.1 The legal burden 17.1.2 The evidential burden 17.1.3 The burden of proof on a voir dire 17.2 The standard of proof 17.2.1 Civil proceedings 17.2.2 Criminal proceedings 17.2.3 Facts relevant to the admissibility of evidence CHAPTER 18: FACTS THAT CAN BE PROVED WITHOUT EVIDENCE 18.1 The doctrine of judicial notice 18.1.1 The effect of judicial notice 18.1.2 Australian law 18.1.3 Facts forming part of common knowledge 18.1.4 Facts that can be verified by reference to an authoritative document 18.1.5 Matters of state 18.2 Formal admissions and agreed facts 18.2.1 Civil proceedings 18.2.2 Criminal proceedings CHAPTER 19: WARNINGS AND INFORMATION 19.1 Uniform evidence law directions 19.1.1 Unreliable kinds of evidence 19.1.2 Significant forensic disadvantage 19.2 Common law directions 19.2.1 Corroboration warnings 19.2.2 Fairness warnings 19.2.3 Factual directions CHAPTER 20: PROCEDURAL PROVISIONS 20.1 The voir dire 20.2 Advance rulings 20.3 Waiver of the rules of evidence 20.4 The giving of leave, permission and directions 20.5 The facilitation of proof 20.6 Ancillary provisions Index