Evidence Law Tutorial 8 PDF

Preview

Summary

Questions for Tutorial 8 ...

Description

Evidence Law Tutorial 8

1.

-First-hand hearsay, previous representation made by a party to proceedings, and could be adverse to that person's position because it was also an admission.  Relevance – s 55  There was a representation made by Max (maker of representation) before trial to Bob (witness) and it is Reasonable to assume that the maker of the previous representation (Max) had personal knowledge of the event (s 59). Thus, Bob’s statement may not be admissible as it is evidence of a previous representation made to prove an asserted fact and it can reasonable be supposed that Max (the maker of the representation) had personal knowledge of the event subject to any exceptions (s 59). On the facts there was a previous representation made by Max to Bob as Max made a statement to Bob and Max had personal knowledge of an asserted fact (that being that he was drunk and had “glassed” someone) as it can be reasonably supposed that his knowledge was based on what he perceived. Bob’s evidence is one step removed from Max – thus it is firsthand hearsay (s 62).

2.

Pursuant to section 84(1)(a) of the Evidence Act (‘EA’), the defence may argue that the admission should not be admissible because it was influenced by oppressive behaviour towards Max. However, Max’s admission was clearly ‘voluntary’, thus, in accordance with Tofilau v The Queen [2007] HCA 39, his admission may still be admissible.

3.

There is no statutory definition of character evidence. In Melbourne v The Queen, Kirby J described character as “the aggregate of qualities which distinguish one person from another, or the moral constitution of a person; it embodies the permanent and unchanging pattern of the nature of the individual concerned.” Once evidence has been provided that the accused is of good character in a particular respect, the prosecution is allowed to provide evidence as to the contrary, and this evidence that the prosecution adduces is not restricted by the hearsay rule, the opinion rule, the tendency rule or the credibility rule.

5.Character evidence is relevant in respect to s 55 as long as it could help the trier of fact, directly or indirectly in the assessment of a fact in issue (TKWG)  it can assist the jury in assessing the guilt of the accused (low threshold from Papakosmas).  Max can lead the evidence in a very specific manner and restrict the terms of the character evidence such that he can restrict the boundaries of what evidence the prosecution can use to adduce that he is of bad character. 

6. As noted in question 5 Max might be able to call his mother to give evidence regarding his good character under section 109 of the Evidence Act. Prosecution must seek leave to cross-examine a defendant on character evidence. (s 192) The court will grant leave if it finds it appropriate. (Stanoevski)...