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5. Note voir dire (s 189) Step 1: Relevance Section 55 (1) – the rule. If the evidence is accepted: 6. Presumption of competency (s 12(a))  Exception: Incapacity (s 13(1)(a)-(b))  Could it rationally affect  Exception: judges and jurors (s 16)  Directly or indirectly  Exception: prosecution can’t call the  The assessment of the probability of the defendant as a witness: s 17(2) existence of a fact (doesn’t need to prove the 7. Presumption of compellability (s 12(b)) fact)  Exception: substantial cost or delay due to incapacity (s 14)  Exception: judges and jurors (s 16) The relevance of evidence does not depend on its o Judge w/ leave (s 16(2)) capacity to prove anything (Evans v The Queen  Exception: co-defendants (17(3)) [2007]. o Unless tried separately  Exception: objections by partners/children (s 18(2), (6), (7); R v Khan, R v Glasby [2000]) “could rationally affect” refers to possibility of 8. Applies to children: s 165A (1) affecting as opposed to certainty (Smith v The  Exception: particular children: s 165A (2) Queen (2001)). 9. Evidence must be sworn: s 21(1)  Exception: incapacity (s 13(3)) Examination of Witnesses Section 56 (1) – if it is relevant it is admissible. 1. Court’s control over the process: s 26 2. Parties may question witnesses: s 27 Step 2: Type of Evidence 3. Order or examination: s 28 Witnesses 4. Manner and form: s 29 1. Burden is on the Crown to call witnesses and 5. Seeking leave: s 192; Stanoevski v R (2001) adduce evidence (R v Apostilides (1984); R v Exam-in-Chief Kneeone (1999). 1. Non-leading questions 2. Defendant’s failure to call witnesses – 2. Reviving memory Comments, judicial or other, must not suggest a. In court requires leave: s 32; s 192 they were guilty (s 20; R v Dyers (2002)) b. Out of court: s 34 3. Prosecution’s failure to call witness – no 3. Given by police officers: s 33 prohibition against negative comments on this (R Unfavourable Witnesses v Louiszos [2009]; Mahmood v WA (2008)) 1. S 38 – the rule, authority to cross-ex 4. Judge calling a witness – only in exceptional 2. S 192 - leave circumstances (R v Damic [1982])

Cross-examination 1. Leading questions allowed (s42) 2. Improper questions (s41) 3. The rule in Browne v Dunn; Marelic v Comcare [1993] 4. Prior inconsistent statements (s43) 5. Previous representation (s44) Re-examination 1. Only questions about cross-ex: s 39(a) 2. Leave required to ask others: s 39(b) Documents Define the document: Dictionary; s 47 Contents of document: a. If available: Tender the document itself: s48(1) Tender a copy of it: s48(1)(b) Adduce evidence as to its contents: s48(1)(a) Tender a transcript of it: s48(1)(c) For voluminous documents, it is also possible – with leave - to tender a summary: s50, s 192. b. If unavailable: Part 5 Dictionary definition of unavailable Adduce copy of document: s 48(4)(a) Witness evidence of contents: s48(4)(b); R v Cassar & Sleiman (No 28) [1999]

Real Evidence 1. ‘Other evidence’ permitted: s 52 2. Must satisfy s 53 before it is adduced 3. Two types under s 53(1): a. Exhibits b. Views - R v Milat (1996); R v Bilal Skaf, R v Mohammed Skaf [2004] 4. General consideration for fairness and abuse of process (s 11)

Step 3: Credibility Dictionary definition - credibility evidence goes towards witness’s ability to observe or remember facts and events Section 102 – credibility evidence inadmissible Section 101A – evidence used for credibility use only is inadmissible 3 exceptions to credibility evidence: 1. Attacking credibility a. Start with section 101A (what is caught by the credibility rule) b. Set out the rule – section 102 c. Section 103 starts the exception – could it substantially affect the assessment of credibility of witness d. Section 106 allows adducing evidence to attack the witness Limit – sexual history (Criminal Procedure Act s293) 2. Bolstering credibility a. Re-examination under s 108 3. Unfavourable witnesses (attacking) a. Unfavourable declaration – section 38 b. Leave– section 192 c. Same as attacking (102, 103, 106)

Step 4: Hearsay Section 59(1) – the rule – what someone has said about a fact cannot be used to prove a fact Section 59(2A) – intended assertions can be decided with regard to the circumstances of the case 3 steps to application: 1. Identify the ‘previous representation’ and the maker of the representation 2. Identify the purpose of the evidence. Is it being adduced to prove the existence of an asserted fact? (yes - hearsay s59 applies; no - not hearsay, s59 does not apply). 3. Identify whether the asserted fact is a fact in issue or is relevant to a fact in issue. Intended and unintended assertions Intended = caught by hearsay Unintended = not caught We need to look to the surrounding circumstances to determine (s 59(2A); Walton v The Queen (1989); R v Hannes (2000)) Exception 1: First Hand Maker (s 62) 1. 2. 3. 4.

Who is the maker of the representation? Does the maker have personal knowledge? Is it a civil or criminal proceeding? Is the maker of the representation available or unavailable to give evidence?

Personal Knowledge – eye-witnessing the event (s 62(2)) Unavailable – exhaustive examples in dictionary clause (1), pg 62 of notes (IMPORTANT TO CHECK

IF CIVIL PROCEEDINGS: If maker is available and called = s 64(3)(b) allows If maker available and not called = s 64(2) + s 67 Notice + s 68 objections (balancing act to allow) If maker not available = s 63 allows IF CRIMINAL PROCEEDINGS: If maker is available: 1. Maker must be called (s 66) 2. Persons present when representation was made ‘fresh in memory’ of maker (s 66(2)(b)) a. ‘Fresh in memory’ -> s 66(2A) breakdown; Graham v The Queen (1998); Regina v XY (2010). 3. Papakosmas example on page 65 If maker is not available: 1. PROSECUTION a. One of the thresholds to be satisfied under s 65(2) b. 65(2) require s 67 notice 2. DEFENCE a. Low threshold of s 65(8) b. Only requirement is giving s 67 notice 3. COMMITTAL HEARING EXCEPTION FOR PROSECUTION WITNESSES (with s 67 Notice): a. If a crown witness isn’t available for the trial but made a representation at the committal hearing before the trial, that representation is allowed for a hearsay use if the defendant had reasonable time to cross-examine the witness but didn’t; s 65(3)-(6); Puchalski v R [2007]

Exception 2: Contemporaneous Statements (66A) a contemporaneous representation about the  person’s health, feelings, sensations, intention, knowledge or state of mind  “I’ve got a headache”, “I feel sick”, “think I’m going  to go home”, etc. Exception 3: Documentary Exceptions (69, 70, 71)  s 69 – business records  s 70 – labels, tags, and writing  s 71 – electronic communications (timestamps, etc.) Exception 4: Aboriginal and Torres Strait (s 72)  s 72 – traditional laws and customs (oral tradition) Exception 5: Relationships and Age (s 73)  s 73 (1) – married or not  s 73 (2) – cohabitants married or not  s 73 (3) – person’s age  s 74 (4) – family history/relationship Exception 6: For another purpose (s 60)  If admissible under another use, also escapes hearsay (s 60(1))  Doesn’t matter if maker had personal knowledge (s 60(2))  If it’s an admission though, hearsay still catches it (s 60(3))  Lee v The Queen (1998); Shepherd v R [2011] o unfavourable witnesses

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Step 5: Admissions The hearsay and opinion rules do not apply to evidence of an admission – s 81 Admission must be firsthand – s 82 Exclusion of admissions influenced by violence – s 84 Admissions to investigating officials need to be recorded – s 85 Em v The Queen (2007) 239 ALR 204; [2007] HCA 46 Tofilau v The Queen (2007) 238 ALR 650; [2007] HCA 39 Discretion to exclude unfair admission – s 90 Silence not an admission – s 89, unless previous admission was made – s89A

Step 7: Opinions Opinions are excluded– s 76 ‘Any inference drawn from observed and communicable facts or data – Quick v Stoland Pty Ltd (1998) 175 ALR 2 EXCEPTIONS:  Lay opinions – s 78 i. 78(a) requires that the person was in a position to see, hear, or otherwise perceive the event ii. 78(b) the opinion is necessary to gain an understanding of their perception iii. Must have a rational basis for the opinion – R v Panetta (1997) 26 MVR 332 

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Specialised knowledge – s 79 i. Is there specialised knowledge Frye v United States (1923) 293 F 1012 – general acceptance in scientific discipline. Requires: ii. s 79(1) Person has it based on their training, study, or experience Note ad hoc experts R v Leung and Wong (1999) 47 NSWLR 405 iii. s 79(1) Evidence of an opinion must be wholly or substantially based on that knowledge Honeysett v The Queen [2014] HCA 20 Wood v R [2012] NSWCCA 21

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Note: exclusions of specialist knowledge on page 84

Step 6: Tendency and Coincidence   

Admissability – s 55; Relevant – s 56(1) No use of evidence for other purposes – s 95 If tendency or coincidence use – ss 97 and 98 require: i. Reasonable notice (s 97(1)(a), s 98(1)(a) + ES v R (No1) [2010] NSWCCA 197 98 days at the local court, 28 days district court ii. Significant probative value (s 97(1)(b), s 98(1)(b), DSJ v The Queen, NS v The Queen: the court has to actually form a view about its significant before it is admitted and even given to the jury iii. In criminal proceedings: Probative value > prejudicial effect – s 101(2) Common law test: Hoch v R (1988) 165 CLR 292; Pfennig v R (1995) 182 CLR 461.

Step 8: Privileges Admissible evidence may be protected by privilege. Applies if the dominant purpose of the particular communication is a privileged purpose; Esso v Federal Commission for Taxation (1999) Recognised categories of privileges:  Solicitor/client: s 118  Third party advice: s 119  Self-represented litigants: s 120  Professional relationship confidentiality: s 126A-B o any professional relationship o s 126B(3)(a)-(b) = balance between likely harm caused to the witness against the desirability of the evidence given o s 126B(4) = mandatory court considerations for this privilege o R v Young (1999) o Nar v PPC1 (2013)  Sexual assault counsellors: ss 295-298 Criminal Procedure Act NSW  Religious Confessions: s 127 o only in religions with a recognised confession process  Negotiations privilege: s 131  Public interest immunity: s 130 o Balance of public interest in disclosure against public interest in secrecy, e.g. national security or matters involving undercover police, secrecy more weighted

Where privilege is lost:  Loss by death/prevention of enforcement of court order/interference with rights: s 121  Consent: s 122  Fraud/Crime/Abuse of power: s 125 Cannot lose privilege by mistake generally/take advantage of the other side’s mistake: 121  Except where you have been slow to recognise your mistake and the other side has acted on your mistake and prepared a counter to it; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013]

Privilege against self-incrimination (s 128)  See page 16 of notes  Stages of use: 1. Objection to giving evidence when asked incrimination question; s 128(1) 2. Court to determine if grounds for objection are reasonable (in voir dire): s 128(2) 3. Evidence not given: s 128(3) a. Unless the interests of justice require it: s 128(4) 4. If evidence is required to be given, certificate issued to the witness preventing the use of the evidence against themselves: s 128(7) 5. R v Lodhi (2006) Right to Silence: s 20(2):  Silence does not imply guilt – see witness evidence above

Step 9: Exclusionary provisions General discretion to exclude evidence: s 135 Where probative value is outweighed by being: (a) unfairly prejudicial to a party, or (b) misleading or confusing, or (c) cause or result in undue waste of time.  General discretion to limit use – s 136 coincides with s 60 non-hearsay use  Must exclude prejudicial evidence in criminal proceedings – s 137 o R v Linard Shamouil [2006] NSWCCA 112  Excluding evidence for how it was obtained – s 138 1. First ask was it illegally or improperly obtained? 2. Consider the desirability balancing: s 138(1) & (3) a. Probative value b. Importance of the evidence c. Nature of offence d. Gravity of offence 3. The way the evidence was obtained: e. Clear breach; or f. Technical breach? 4. Contravention of Australian law g. Act specifically refers to International Covenant on Civil and Political Rights – if the illegality was a breach of international law is a factor 5. Are there going to be other proceedings to address the illegality or impropriety? 6. Also consider whether there were other ways of obtaining this evidence that weren’t illegal or improper  Then consider s 139 – have to caution people before questioning them (pg 103 cases) R v Swaffield; Pavic v R (1998) 192 CLR 159 ...