VU21635 Define and Evaluate Law of Evidence

Evaluate and discuss the rules in relation to examination in chief.Analyse and discuss the rules of cross examination.Evaluate and apply the concept and the rules of re-examination in relation to the purpose and restrictions on question that may be asked.Identify the circumstances in which evidence is permitted to be used in rebuttal.Define and discuss the term, purpose, and procedure for Voir Dire.

Compare and contrast the terms competent and compellable and distinguish a competent witness from a compellable witness.Determine those persons who may not be competent and compellable witnesses Identify and discuss the privileges that may exempt a person from answering questions.Review the rule against hearsay, including exceptions to the rule, in relation to:

• First-hand hearsay
• Business records
• Electronic communications
• Aboriginal and Torres Strait Islander traditional laws and customs
• Reputation

Review the rule excluding opinion evidence, including exceptions to the rule, in relation to:

• Evidence relevant for a purpose other than as opinion evidence
• Lay opinions
• Expert opinions – opinions based on specialised knowledge

Aboriginal and Torres Strait Islander traditional laws and customs Review the rules of evidence relating to admissions with reference to:

• Exclusion of evidence of admission
• Reliability of admissions by defendants
• Admissions made with authority
• Proof of admissions

Determine admissibility of evidence of judgments and convictions.Determine the admissibility of evidence relating to tendency and coincidence is determined Analyse the concept of credibility of a witness with reference to:

• Admissibility of evidence as to credibility
• Examination and cross-examination of witnesses
• Credibility of persons who are not witnesses

Determine and assess the rules of evidence relating to the character of an accused person with reference to:

• Character in the context of the rules of evidence
• Relevance of character evidence
• Similar fact exception rule
• Evidence about character of the accused and co-accused

Determine and review the admissibility of identification evidence in a criminal trial Analyse and assess the nature and context of privileges in relation to evidence Review the nature of judicial discretion to exclude evidence, including and with reference to:

• General discretion to limit or exclude
• Prejudicial evidence in criminal proceedings
• Improperly obtained evidence

A party who calls a witness examines that witness in chief.A leading question must not be put to a witness unless; the court allows, and such questioning is on a matter appearing in the introduction of the witness's statement, no party objects to the questioning and all parties in the proceeding have legal representation from an Australian legal practitioner.

If the witness has specialized knowledge, the questioning is aimed at getting the opinion of the witness opinion on statement of facts where evidence is supposed to be adduced.

Rules of cross-examination

Parties should avoid cross-examining witnesses who have been procured erroneously and does not have the benefit of being questioned by the opposing party on any matter that is the subject matter of the proceedings.

Courts normally disallow improper questioning of a witness during cross examination.A witness can be led during cross-examination unless the court objects.Witnesses should not be questioned on representations that certain individuals made except where such evidence has been admitted.Courts normally give leave to any to party to call back a witness for questioning on any matter, which has been alluded to by a different party.

Concept of re-examination

Leading questions should not be asked of a witness in examination in chief only where; the court allows, such question has a relation to the evidence being tendered by the witness, no party has raised an objection and each party has the advantage of legal representation from an Australian legal practitioner.

In the event of reexamining a witness;

(a) he or she can be questioned on any matter which  arose when the other party was being cross examined

(b)  he or she should not be asked other questions except the one he or she has been called to clarify. 

Rebuttal Evidence

Courts often allow parties to a case re-open its cases to call rebuttal evidence. Evidence in rebuttal may be allowed where there are formal defects to prove a matter not open to denial.It can be permitted where the defendant carries legal burden of proof in an issue.It can be permitted if it relates to a matter which the prosecutor was unable to foresee.It can be allowed to prove an inconsistent statement given by a defense witness relating to a fact in issue.

Term, purpose, and procedure for Voir Dire

Voir Dire is where questioning of persons intending to become prospective jurors is done by a judge or an attorney. The parties can call witnesses and make submissions as they might during trial.Voir Dire helps in determining if any of the juror is likely to be biased or is incapable of dealing with the issues conclusively and fairly.After selection, jurors are undergo a form of examination where the prosecution or the defense are at liberty to object to a juror.

Competence and compellability

Competence governs the ability of a witness to give evidence during trial while compellability is a state of a competent witness to be forced to give evidence in court.A competent witness is a person legally qualified to testify before a court of law or tribunal whereas a compellable witness is one who can lawfully be required to testify.

Competent and compellable witnesses

The following are not compellable; a Sovereign, Governors, administrators and foreign sovereign and a member of a Parliament. Judges and any juror is incompetent to testify in the same proceeding.A former Australian judge or in another jurisdiction cannot be compellable to testify on any proceeding in a matter they had earlier handled without the court’s leave.An accused is incompetent to testify for the prosecution.

Client legal privilege

Evidence is precluded from being adduced if it is open that such evidence would lead to a disclosure of; 

(a) Confidential information obtained through client and a lawyer relationship; or

(b) Confidential information received by several lawyers in the course of their duty; or

(c) Confidential information in any document whose contents are known by a client, lawyer or a confidant of the client.

Evidence shall not be adduced where; a court finds such evidence to would lead to breach of confidentiality.Evidence shall not be adduced if there is objection which, the court easily discovers.

Hearsay rule

Hearsay refers to testimony tendered during hearing by an individual save for the one who heard it. Generally, hearsay is inadmissible.

First-hand Hearsay

Reference to previous representation made by any individual who had been aware of any opinion or fact on what was seen, heard, felt or perceived, except a prior representation  by a third party on a similar fact.

Business records

  If the representation is made by any individual who was aware of the facts then the hearsay rule becomes in applicable to the document. Secondly, if an information given by any individual who reasonably could have knowledge about the facts, that automatically displaces the hearsay rule.

Communications done electronically

Hearsay is inapplicable to any representation in any document recorded electronically provided it relates to;

(a) Identity of any individual who sent the communication or for which the information was sent; or

(b) Date when the said communication was relayed; or

(c) Destination of the information or the supposed recipient of the subject communicated.

Traditional laws and customs of the Aboriginal

Hearsay is inapplicable to any inference on existence or otherwise, on any content of  laws and traditional customs of any Aboriginal or Torres group.Matters relating to reputation Hearsay will not be applied on evidence that touch on reputation on;

(a) the marital status of any person

(b) Whether a man and a woman during cohabitation were married to each other

(c) the of any individual

(d) history of any family or that of a relationship.

Interlocutory proceedings

Where interlocutory proceedings are involved, hearsay is inapplicable to evidence if any individual adducing it discloses its source.The rule excluding opinion evidence Evidence of any opinion is inadmissible to prove that a fact exists.The rule of opinion is inapplicable to any evidence on any opinion if the admission of such opinion is done owing to the strength of its relevance for a use contrary to proving that a fact exists.The rule on opinion evidence will not be applied to any evidence if made by a person and falls under any of the below categories;

(a) such opinion is anchored on the sense of sight or hearing any matter or events

(b) such opinion can be used to obtain the understanding a person’s perception of the subject matter.

Opinion rule is inapplicable to evidence of an opinion of that person that is based on the knowledge of someone who possesses specialized knowledge.

The rules of evidence

Admission is an earlier statement by a third party which can be used as evidence over a hearsay objection. Admissions are admissible in both criminal and civil cases.Exclusion of evidence of admission

The application of the hearsay rule to evidence of an admission is not prohibited except;

(a) where it is from that party who witnessed the admission  at the time of making it.

(b) where the document available contains a recording of the admission being made.

Any evidence on an admission is inadmissible except where the court is satisfied that such admission has not been obtained through threat to violence.

Defendants’ Admissions

A defendant are likely to admit matters relating to facts and consent in any civil litigation.Admissions made with authority A court shall admit a representation if it finds that at the time of making the representation, such person had express instructions to make for the other party

Proof of admissions

In determining the admissibility of evidence of admissions, the court shall find that a certain person admitted if it can be found that such person made the admission.

Evidence of a silent party

An inference unfavorable to a party must not; be drawn from evidence that the party or another person failed in any of the following.

(a) to answer a question; or

(b) to dispute a claim put by the party

Such type of Evidence is inadmissible if it’s only probable value is to infer such inference.

Judgments and convictions

Evidence on a decision, is inadmissible as to prove existence of any fact that might have been in issue during the proceeding.In a civil proceeding , the admission of evidence that a party had earlier been convicted, and such conviction being;

(a) one pending the conclusion of a review or appeal

(b) already quashed or set aside

(c) which has been pardoned

Tendency and coincidence

Evidence of the character, is not admissible in proving that an individual is used to acting in a certain way.credibility Evidence as to the credibility of a witness is inadmissible. It is only relevant if it affects the required credibility of the said witness.

Examination and cross-examination

The credibility rule is not applicable to that testimony given during cross-examination provided such evidence could in a way not interfere with the credibility of a witness.If a matter is relevant to the assessment, an accused need not be put to cross-examination  of his or her credibility of the accused unless a court of competent jurisdiction grants a leave to that effect.

Persons who are not witnesses

In situations where evidence of a prior representation was admitted during any previous proceeding and the party who made such representation has not appeared for testimony, credibility evidence about such person is inadmissible.

Persons with specialised knowledge

In cases where the person has specialized knowledge and the evidence is an opinion of the person based on that knowledge the court exercises its discretion to allow such person to testify.

Character in rules of evidence

Hearsay and opinion rules are inapplicable to that evidence adduced by the accused in proving that his or her character is good.If evidence adduced to prove the character of an accused is admitted, the above rules cease to apply to in proving that an accused is of good character.The evidence that an accused is of bad character is inadmissible since it is prejudicial.

 Similar fact exception rule

The evidence itself is inadmissible depending on the purpose. For instance, if the chain of evidence is adduced purposely as an inadmissible chain of evidence.

 Character of the accused and co-accused

Hearsay and tendency rules are inapplicable to the character evidence of an accused, which is not guided by the character and hearsay evidence unless opinion evidence on the accused is adduced by an accomplice.

If such evidence has been admitted, the rules do not apply to evidence adduced to prove that it should not be accepted.Cross-examination of character of accused or co-accused An accused must not be cross-examined about matters arising out of evidence without the leave court. 

Identification evidence in a criminal trial

Visual identification evidence adduced by the prosecutor is not admissible unless an identification parade that included the accused was held.

Privilege in relation to evidence

Evidentiary privilege are rules that prevent the admission of evidence.Legal professional privilege ensures that any confidential communications or information given to an advocate by the client is protected.Other forms include privilege against self-incrimination, public interest privilege, medical professional privilege, marital privilege and clergy-penitent privilege.

The discretion to exclude

Courts often refuse the admission of evidence if on weighing its probative value; it outweighed by the danger that the evidence might; cause prejudice and demean the deceased in any proceeding for homicide related offences.

Prejudicial evidence in criminal proceedings

In a proceeding that is criminal, the court must not admit that evidence by the prosecutor if it is likely to pose unfair prejudice to any accused person.

 Improperly obtained evidence

Evidence that was obtained using improper methods contrary to Australian law is inadmissible.Cautioning suspected offenders Evidence of a statement made during questioning is improperly obtained if the person was under arrest, the questioning was conducted by an investigating official who did not caution the person that he should remain silent.

Bibliography

Activist Legal Information (03 March 2017) www.activistrights.org.au/handbook/cho2s17s13.php

 Alexander, Bagaric, Feld, Uniform Evidence Law: Principles and Practice (Oxford University Press Australia & New Zealand, 2015)

Andrew, Ligerwood, Gary Edmond, Australian Evidence: A principled approach to the Common Law and the Uniform acts (LexisNexis Butterworths, 2004)

Australian Law Reform Commission (04 March 2017) www.alrc.gov.au/publications/2.%20The%20uniform%20Evidence%20Acts/movement-towards-uniform-evidence-law

Bagaric, Arenson, Rules of Evidence in Australia: Text and Cases (LexisNexis Butterworths, 2007)

Evidence Law in Australia – National Archives of Australia (02 March 2017) www.naa.gov.au/information-management/information-governance/evidence/evidence-law-australia/index.aspx

Field, David, Quensland Evidence Law (Lexis Nexis, 2014)

Jeremy Gans, Andrew Palmer, Australian Principles of Evidence (Routledge Cavendish, 1998)

Hemming, Andrew and Kumar, Miiko and Peden, Elisabeth, Evidence: Commentary and Materials (Thomson Reuters, Sydney, Australia, 2013)

Ian R, Freckelton, Hugh Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (Law Book Company, 2009)

Jeremy, Palmer, Uniform Evidence (Oxford University Press, 2009)

LexisNexis Australia – Western Australian Evidence Law (04 March 2017) https://store.lexisnexis.com.au/product?product=western-australian-evidence-law&meta_F_and=9780409338423

Cross, Tapper, Cross & Tapper on Evidence, (Oxford University Press, 2010)

Srivastava, Aashish, Electronic Signatures for B2B Contracts: Evidence from Australia (Springer, 2012).