Evidence Law hypothetical scenario PDF

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NAME: STUDENT NUMBER: UNIT CODE: LAW313 ASSESSMENT ITEM: Hypothetical Situation Essay WORD COUNT: 2, 525 DUE DATE: Friday, 21 December 2018

(1) i Rule of Hearsay Witnesses who speak hearsay are most commonly repeating what they heard someone else say, instead of recounting what they themselves observed or experienced. 1 Prima face, Barton is a competent witness to give evidence and thus compellable to give that evidence. 2 Barton’s recount of what he heard from Darby could rationally affect (directly or indirectly) the assessment of the probability of the issue. 3 Barton adduces the words that he heard from Darby (the maker of the oral representation). The court must determine which facts were being asserted by Darby. The assumption is that she intended to assert exactly what she said. 4 The court would apply the objective test in s 59 (2A) of the Act to determine whether it can be reasonably supposed that Darby intended to assert that she knew the identity of the driver through her representation to Barton.5

The court would have regard to the circumstances in which the representation was made. 6 The previous representation appears to be used by the prosecution as a purpose ‘to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’.7 The previous representation by Darby is used for a hearsay (testimonial) purpose to establish the truth of what is contained in the statement and therefore would prima facie be inadmissible.8 1 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015)

[205.80]. 2 Evidence Act 1995 (NSW) s 12 b. 3 Evidence Act 1995 (NSW) s 55. 4 Evidence Act 1995 (NSW) s 59 (2A). 5 Evidence Act 1995 (NSW) s 59 (2A). 6 Evidence Act 1995 (NSW) s 59 (2A). 7 Evidence Act 1995 (NSW) s 59. 8 Subramaniam v Public Prosecutor [1956] 1 WLR 965.

ii First-Hand Hearsay There is an important exception with regard to “first-hand hearsay”. 9 First-hand hearsay is where the person who made the previous representation has personal knowledge of the asserted fact. 10 The exception to this is divided into two parts. If Darby is not available to give evidence, first-hand hearsay may be admissible, subject to the notice requirements in section 67 of the Act. 11 If the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely the representation was a fabrication, then the evidence may also be admissible. 12 If Darby is available to give evidence, first-hand hearsay would only be admissible if she has been or is to be called as a witness and can be cross-examined about the asserted fact. 13

The legislation extends to provide that where Darby has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by her; or a person who saw, heard (Barton) or otherwise perceived the representation being made; if when Darby said those words to Barton, the occurrence of the incident was fresh in her memory.14 In determining this, the court may take into account all matters that it considers relevant.15 Including, the nature of the accident between Hampton and Norman, the age and health of Darby, the period of time between the occurrence of the accident and the 9 Evidence Act 1995 (NSW) s 62. 10 Evidence Act 1995 (NSW) s 62. 11 Evidence Act 1995 (NSW) s 67. 12 Evidence Act 1995 (NSW) s 65(2)(b). 13 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015)

[205.90]. 14 Evidence Act 1995 (NSW) s66(2A). 15 Evidence Act 1995 (NSW) s 66 (2A).

making of Darby’s representation. 16 It would need to be identified why Darby was not called and whether she will be called in order to determine whether the first-hand hearsay will be admitted. If the prosecution did not call her because it was unfavourable to their case, this could lead to a miscarriage of justice and a retrial could be called. 17 (2) i Questioning Barton The court has ultimate control over the questioning of witnesses. 18 In a witness’ examinationin-chief, counsel should endeavor to ask questions that will enable the witness to provide to the court all the information which they possess which will assist counsel’s client to prove or disprove the facts in issue. 19 Leading questions are not be used in examination-in-chief. This idea is based on the common law principle that a ‘witness must testify in her own words’ rather than those of counsel questioning the witness. 20 The question the Prosecution put to Barton is a leading question whereby they’ve included in the question a matter which Barton has not already conceded.21 It is a leading question as Barton has not already given evidence about the speed of the truck. Section 37 provides that leading questions must not be put to a witness in examination-in-chief or re-examination unless an exception applies. If the court gives leave to the Prosecution then the question is admissible. 22 If the question related to a matter that was not in dispute then it may be admissible. 23 Fundamentally, the Prosecution 16 Evidence Act 1995 (NSW) s66 (2A). 17 R v Kneebone (1999) 47 NSWLR 450. 18 Evidence Act 1995 (NSW) s 26. 19 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015)

[A203.14]. 20 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015) [A203.10]. 21 Evidence Act 1995 (NSW) s 37 (1). 22 Evidence Act 1995 (NSW) s 37 (1)(a). 23 Evidence Act 1995 (NSW) s 37(1)(d).

have diminished Barton’s evidence by asking a leading question to elicit evidence concerning an important and disputed matter. 24 (3) i Opinion Evidence The opinion rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 25 Barton’s response to the defence of his opinion of how fast the truck was going, cannot be admitted for the purposes of proving how fast the truck was going.26 Section 77 provides that the rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. 27 Section 78 provides the exception of a lay opinion which states that the rule does not apply to evidence expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event 28; evidence of the opinion is necessary to obtain adequate account or understanding of the person’s perception of the matter or event. 29 Provided the two conditions are met, a lay opinion is admissible. Evidence of what people see (what Barton saw), hear or otherwise perceive with their senses will often be admissible under section 78. Barton can be cross-examined for his opinion. If Barton fails to provide adequate answers to

24 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015) [203.185]. 25 Evidence Act 1995 (NSW) s 76. 26 Ibid. 27 Evidence Act 1995 (NSW) s 77. 28 Evidence Act 1995 (NSW) s 78 (a). 29 Evidence Act 1995 (NSW) s 78 (b).

these questions, then his opinion (if it is admitted) will have little weight and can be overcome by someone else’s opinion and his credibility challenged. 30

The court would determine the evidence of what Barton said he saw and its probative value, or if it should be excluded or limited due to it being prejudicial. 31 The court would need to find that the opinion would have a rational basis to have any probative value. 32 To determine this, the court would consider Barton’s opportunity to perceive what the approximate speed of the truck from where he was; and Barton’s prior experience in assessing similar facts and drawing inferences from those. If those two considerations fail, there is no rational basis for Barton’s opinion. In R v Panetta, the NSWCCA held that opinion evidence that lacked rational basis was unsatisfactory of the test of relevance in section 55 of the Act and thus was inadmissible. 33 The court may allow Barton to express his opinion but if Barton has had no experience at all in gaging the speed of cars, then there will be no rational basis and his opinion will be inadmissible.34 (4) i Questioning the Witness after Cross-Examination Unless the court otherwise directs, cross examination of a witness is not to take place before the examination-in-chief of the witness;35 and re-examination of a witness is not to take place

30 Australian Law Reform Commission, The Opinion Rule and Its Exception, Report No 102 (2006) 9.12. 31 Ibid. 32 Ibid. 33 R v Panetta (1997) 26 MVR 332. 34 Australian Law Reform Commission, The Opinion Rule and Its Exception, Report No 102 (2006) 9.9. 35 Evidence Act 1995 (NSW) s 28(a).

before all other parties who wish to do so have cross-examined the witness. 36 However, when section 28 is read alongside section 190, it is understood that as a result of section 190(1) that the rules of evidence can be waived by an order of the court where the parties consent. 37 The waiver only applies to provisions set out in s 190(1)(c). 38 ii Prior Inconsistent Statement If the court waived the rules of evidence and the parties consent, the defence may crossexamine Barton about his prior inconsistent statement in order to impeach his credibility. 39 “Prior inconsistent statement” is defined as a “previous representation that is inconsistent with evidence given by that witness.” 40 The I-Phone recorded statement is inconsistent with Barton’s testimony in examination-in-chief. Defence have brought that to the court’s attention for purposes that are supportive of their case. 41 This could be for two purposes. Firstly, to establish that there are two different versions and the correct one is unclear or that the correct one is that a “short red-haired man” was the driver of the truck. Secondly, for the purpose of attacking Barton’s credibility. 42 Section 43 provides the process by which evidence is adduced and how this is to be put to the witness.43 If Barton admits to making the prior inconsistent statement, then the defence point is made and they can ask questions about same in order to expose Barton’s credibility to support their case.44 If the I-Phone recorded statement is relevant only to the credibility of 36 Evidence Act 1995 (NSW) s 28 (b). 37 Evidence Act 1995 (NSW) s 190 (1). 38 Evidence Act 1995 (NSW) s190(1)(c). 39 Evidence Act 1995 (NSW) s 43. 40 Evidence Act 1995 (NSW). 41 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015)

[205.195]. 42 Ibid. 43 Evidence Act 1995 (NSW) s 43. 44 Evidence Act 1995 (NSW) s 43 (2).

Barton, then evidence that he made the prior inconsistent statement may be adduced otherwise than from himself; and if he has denied the substance of the evidence. 45 The court will grant leave to adduce the prior inconsistent statement. 46 iii Cross Examination and Credibility Evidence Credibility evidence is relevant as it indirectly affects the assessment of the probability of the existence of a fact in issue. 47 The effect of the credibility rule means that evidence about a witness is inadmissible.48 Credibility evidence will be inadmissible in two situations (unless an exception is found). Firstly, where the evidence is relevant only to the credibility of a witness. 49 Secondly, where the evidence is relevant to the credibility of the witness and for some other purpose, for which it is inadmissible.50 a. The effect of s 101 and 102 If the I-Phone recorded statement was adduced only to the credibility of Barton (i.e. relevant only for a credibility purpose), it is inadmissible unless it satisfies one of the exceptions. 51 If it is relevant for a credibility purpose and for a non-credibility purpose and it is inadmissible for that purpose, it is also inadmissible for its credibility purpose, unless it satisfies one of the exceptions.52 If it is relevant for a credibility purpose and for a non-credibility purpose, it is admissible for its credibility purpose53. Fundamentally, if the I-Phone recorded statement is

45 Evidence Act 1995 (NSW) s 106(1)(a). 46 Evidence Act 1995 (NSW) s106 (1)(b). 47 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015)

[205.140] 48 Evidence Act 1995 (NSW) s 102. 49 Evidence Act 1995 (NSW) s 101A (a). 50 Evidence Act 1995 (NSW) s 101 A (b). 51 Evidence Act 1995 (NSW) s 101A. 52 Ibid. 53 Ibid.

completely prohibited by one or other of the exclusionary rules, it cannot be used for a credibility purpose or any other purpose. 54 Most evidence that is relevant for a credibility purpose is relevant to a fact in issue. 55 Evidence concerning the credibility of a witness is as relevant to proof of an issue, as are the facts given by that witness.56 Meaning, if it is accepted that Barton is credible, then his evidence about the fact in issue (the identity of the driver) is accepted. Conversely, and applicable here, if it is not accepted that Barton is a credible witness, then his evidence with regard to the fact in issue will not be accepted.57 Prima facie, section 102 makes the I-Phone recorded statement inadmissible. 58 There is an exception in section 103 which allows credibility evidence to be adduced in cross-examination of a witness if that evidence could ‘substantially affect the assessment of the witness’s credibility’. 59 The purpose of this is to allow cross-examination on numerous matters that arise from examination-in-chief of a witness’ capacity and opportunity for accurate observation or recollection, bias, motive for being untruthful. 60 The court would consider whether the I-Phone recorded statement proves that Barton knowingly or recklessly made a false representation when he was under an obligation to tell the court the truth; and the period that has elapsed between the crash and I-Phone recorded statement. 61

54 Evidence Act 1995 (NSW) 101A(b). 55 Palmer v R (1998) 151 ALR 16 [7]. 56 Ibid per McHugh J [47]. 57 Evidence Act 1995 (NSW) s 101A. 58 Evidence Act 1995 (NSW) s 102. 59 Evidence Act 1995 (NSW) s 103. 60 Evidence Act 1995 (NSW) s 103. 61 Evidence Act 1995 (NSW) s 103.

Leave must not be given for cross-examination by the prosecution about any matter that is relevant only because it is relevant to the assessment of Norman’s credibility unless s 104(4) applies.62 That is, evidence adduced by the defendant has been admitted that (a) tends to prove that Barton, called by the Crown has tendency to be untruthful; and is relevant solely or mainly to Barton’s credibility. 63 Thus, leave could be granted so the prosecution could crossexamine Norman. Where Barton denies or doesn’t admit to the I-Phone recorded statement under s 103, the credibility rule will not stop the evidence being adduced to prove what Barton denies, if the substance of that evidence was put to Barton and the court gives leave. 64 However, leave is not required if the evidence tends to prove that Barton has made a prior inconsistent statement.65

b. A rule of fairness: Re-calling the witness As Kirby J has stated, where an accused has put forward a case and it has not been put in cross-examination, the Crown may recall a witness under s 46 of the Act. 66 The Browne v Dunn rule, a rule of fairness, ensures that Barton has an opportunity to explain if the defence intends to later contradict or discredit them. 67 The court would need to consider the nature and course of the proceedings having special regard to the ‘accusatory nature’ of a criminal trial.68 The defence could submit, as was done in Liristis, that there is no obligation for

62 The College of Law, New South Wales Practice Paper (LexisNexis Butterworths, Volume 4, 2015) [205.190]. 63 Evidence Act 1995 (NSW) s 104 (4). 64 Evidence Act 1995 (NSW) s 106(1). 65 Evidence Act 1995 (NSW) s 106(1)(c). 66 Evidence Act 1995 (NSW) s 46. 67 R v Liristis [2004] NSWCCA 287 per Kirby J at 108. 68 ‘Digest of Criminal Law Cases’ (2006) 30 Criminal Law Journal 119, 124.

Norman to put his case to the prosecution. 69 However, the implication of this argument is that Browne v Dunn is incompatible with the presumption of innocence and the right of the accused not to give or call evidence at trial. 70 It has been confirmed that the Browne v Dunn rule applies to criminal proceedings but the application of it must be considered on a case by case basis.71 The High Court’s explication of the Browne v Dunn rule indicates that the application of it in criminal proceedings is not completely incompatible with those principles.72 Consequently, the prosecution could re-call Barton as a witness according to the Browne V Dunn rule.

69 R v Liristis [2004] NSWCCA 287. 70 Dyers v R [2002] HCA 45 [10]. 71 MWJ v R [2005] HCA 74. 72 Ibid....