EVIDENCE MID SEMESTER EXAM
Semester Two 2004
MARK: 77
Words underlined, except headings, are lecturer’s underlining
Question 1 [5/8]
S56: evidence relevant in a proceeding is admissible. The test for relevance comes from s55.
Relevant?
P’s evidence of what he read is relevant to a fact in issue (FII) in the sense that it could rationally affect the assessment of the probability of the existence of a fact in issue, in this case whether D had made a misleading advertisement [D admits this??] and possibly [yes] that P had read it.
Opinion – s76? – Professor’s opinion
S76 is not applicable here because the evidence of the statement is not adduced to prove the truth of the professor’s opinion [how is it relevant?]
Hearsay – s59?
While the professor’s statement is a previous representation, it has not been adduced for a testimonial use, thus s59 would not exclude the evidence. [explain]
Documentary evidence- s48
The evidence of the contents of the advertisement needs to be authenticated in the sense that it must be proved that it was executed or adopted by, or otherwise connected to a particular person, in this case, probably D. The contents also needs to be proved in a way allowed in s48 – and arguably this has not been done.
Question 2 [6/8]
S55 Relevance?
X’s evidence is relevant to a FII – whether P relied on the ad.
Opinion
X’s statement that P “looked excited” may be excluded as opinion evidence. There is however a possibly relevant exception in s78, lay opinion. It is arguable that her statement was based on what she saw and was necessary to obtain an adequate account of her perception this can be likened to R v Van Dyk where W said D had a look of wanting – this was admissible under s78(b), however, should have been excluded under s137. thus in this case it is arguable that X’s evidence could be excluded under s135(a) as its probative value is substantially outweighed by the evidence that it might be unfairly prejudicial to D – though unlikely that this is the case here.
Hearsay
D’s statement ‘I will fix up those magpies’ is not adduced for testimonial use and thus is not inadmissible on this basis.
However the general conduct of D, observed by X may be a hearsay use – used to prove that D relied on the ad. A representation includes a representation to be inferred from conduct. It can be considered a previous representation. However it must be proved that P intended to assert that reliance by his conduct. Walton argues that implied assertions are never intended but under the Act the burden of proof is on the party who claims that the intention was present (Hannes), ie. P. this is unclear. There is also an issue of documentary evidence (as above).
Question 3 [6.5/10]
Relevance
P’s evidence is relevant on a propensity basis, that because a person generally acts in accord with a tendency he has, it can be inferred that person did on this occasion ie. That D has tendency to intentionally mislead and therefore did on this occasion (s97). There must be notice (s97(1)(a)) and the evidence must have significant probative value (s97(1)(b)). In this case it is very likely that the evidence of Ds previous actions do not have significant PV b/c there is not enough regularity and uniformity (Connor). There is a lack of similarity. Alternatively it may be argued that the events are coincidence evidence (s98) [explain a bit] Again there must be notice and significant probative value. However arguably the events are not substantially and relevantly similar (s98(2)(a)) and therefore cannot be adduced to show that a person did a particular act or had a particular state of mind. they are just too different.
The evidence may be excluded under s135 as their probative value may substantially outweigh the danger of unfair prejudice to D – because they are evidence of previous convictions and the jury give them more weight than they deserve. It must be a real risk though (Lisoff). May give limiting direction under s136 if admissible.
Question 4 [2.5/4]
Relevance
Relevant to FII – whether D had intention to mislead.
Hearsay – D’s statement to Cal
While this is a previous rep as defined in the Act, it is not advanced to prove the truth of the statement but just to show D’s intention [?] Therefore s59 is not applicable.
Opinion – D’s statement
Not excluded under s76 because it is not adduced to prove the fact asserted in the statement.
Question 5 [7.5/8 Good answer]
Relevance
This evidence goes to C’s credibility (s55(2)(a)). The test is whether it would tend to show that C should not be believed on oath. Evidence relevant only to a witness’s credibility is not admissible (s102). []
Exceptions
S103 may apply as the evidence is adduced in cross examination. [] The evidence must have substantial probative value (s103(1)). [] The TJ must assume that W will answer the question in a way that is least favourable to their credibility (Hooper v Gorman) []
Substantial PV?
It has substantial PV if it could rationally affect the assessment of the credit of Cal. []
Para (a)
This suggests that C is not an impartial or disinterested W (Mahoney J in Hooper) because she has been paid. [] It also shows a motive to lie (R v Uhrig) for the above reason.
Must also have regard to period that has elapsed since acts to which relates (s103(2)(b)) [] but it is unclear when this statement was made in relation ot the events. Probably subst. PV. []
Para (b)
This ev has subst. PV because it shows an attitude to her responsibilities as a citizen, such as would weaken confidence in her credibility (Hooper – Glass and Samuels J). []
Para (a) – issue of hearsay?
No b/c not a testimonial use, goes to credibility. []
Para (b) – issue of documentary evidence re: letter
Is there authentification? Seems that contents of letter not proved in accordance with s48. []
Question 6 [7/8]
Relevance
Relevant to credibility of C (s55(2)(a)) – as it appears that C made a prior inconsistent statement. S102 could apply but as this evidence is adduced in x-exam – s103 applies. Arguably it has substantial probative value because s106 is a guide as to what kinds of evidence may be relevant to credibility and evidence of a PIS is one of them. Therefore it would be admissible.
However it is arguable that C’s statement to N is also relevant to a FII – whether D did intend to mislead. [] This statement possibly indicates that he didn’t. in that case s102 and s103 would be inapplicable. []
Hearsay
C’s statement to N is a previous representation that contains an assertion of the existence of a fact that was intended, however it may only be an original use – if it is only to show that C should not be believed. [] Though as the statement may also be relevant to a FII it may have a testimonial use.
Question 7 [6/8]
Relevance – s55
S’s evidence is relevant to a FII – whether D intended to mislead, because if he didn’t know that a particular chemical changed the product’s effect, he may not have intended to mislead. []
Opinion evidence
It is prima facie excluded under s76, however there may be an exception. S78 is not applicable as his opinion is not based on a perception of the event (s78(a)). However s79 – expert evidence – may be relevant. [] The test comes from s79 and Makita. It seems that pharmacy is a specialised knowledge. S has given evidence that he became an expert based on some sort of training or study. The opinion must be wholly or substantially based on that knowledge. It is questionable whether S’s training forms a reliable basis for an opinion and this needs to be established, in that, does a pharmacist have knowledge of chemicals in a pet food substance. His evidence may be admitted provisionally under s57. [] A voir dire may need to be held to establish this requirement (s189). It appears though that he has proved the factual substratum – as he has given evidence of the assumptions he made. If he did not do this, his evidence would have little or no weight. It is also necessary to prove that the facts that underlie his opinion are true (Makita). []
Hearsay
What D’s employees told S is not adduced to prove the truth of the facts asserted. [] [Does s59 apply?]
The TJ may give a limiting direction under s136 because of the fact that P cannot x-examine D’s employees and this would be unfairly prejudicial. Though it is unclear whether this in itself would constitute unfair prejudice.
Question 8 [5/6]
Relevance – s55(2)(a)
This evidence is relevant to C’s credibility as to whether she should be believed on oath. As this evidence is only relevant to C’s credibility – s 102 applies. [] However the exception in s106 is applicable – rebutting denials by other evidence. [] As C denied the evidence put to her (in question 5) [] – it is possible to use s106. s106(a) is the applicable rule because in para (a) the evidence shows that C is based or has a motive for being untruthful. [] An allegation is a matter of bias if it shows a motive for being untruthful – which is the case here – she was possibly paid. In relation to para (a), Umanski may be analogous to this case in that may be the statement that she would give D a lot of trouble is similar to saying that she would give up D to the police if D didn’t give her property. This was held to not go to bias but a willingness to disregard her public duty – though this is unclear. [] However it is more questionable whether there is a section in s106 that would allow D to admit the evidence in para (b). [] It arguably could show a motive for being untruthful though because she was dismissed by D and therefore is biased.
Hearsay
C’s statement to M is not adduced on a testimonial basis but to show a motive to not give the truth. Therefore s59 inapplicable. []
Question 9 [5/6]
As the False Advertisement Act states, the P carries both an evidential and legal burden in relation to all issues of ultimate fact. The legal burden of proof attaches to an ultimate fact in issue. The evidential burden is where on a no-case submission the TJ asks, taking the evidence at its highest, could the jury (or jury role of judge) find that each ultimate fact in issue exists beyond reasonable doubt? The standard of proof in civil cases P has is that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (s140(1)). [] [Use s104(2) also] In Briginshaw, Dixon J said the standard is fixed. The issue is affected by the nature of the cause of action or defence, the nature of the subject matter and the gravity of the matters alleged.
The fact finder should not reason that mathematical chances favour existence of a relevant ultimate fact in issue. []
As this is a largely circumstantial case, the principle in Bradshaw applies. The P must establish to the fact finder that the more probable inference is that the facts existed i.e. – whether P relied on the advertisement, whether D mislead and whether D intentionally mislead. [] By ‘more probable’ is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. []
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