Laws 2207
Evidence Laws
Semester 2 – 2000, Questions 1 - 9
Mark: 87
Question 1
It is unclear what form this evidence is given in but in any case s. 29 (2) allows the court to direct evidence to be given in narrative form s. 29.
First Paragraph
Is it s.55 relevant?
Yes, it could rationally affect the assessment of whether the claim could lead ordinary people to think the less of the plaintiff under s.7 (fact in issue). In addition adduce statement the subject of the action (relevant to section 2) – tends to show was published to another prism on relevant date.
Is there a hearsay problem?
No the statement “P has defrauded business partner” is not used assertively but simply to show that was said, Subramanian.
Is there an opinion evidence problem?
No, the opinion that led her to think less of plaintiff not used to prove truth of opinion or existence of fact but to issue in s. 1 s. 77 applies, Preston.
However W is adducing evidence of a document therefore this will need to satisfy s. 48 – tender the document or a copy if it (paper its Appaling (?) relevant issue). Authenticity must also be satisfied: - balance of probabilities (BoP) that written or adopted by D – here may take judicial notice order s. 144 (1) (a) if D’s ownership on paper is common knowledge in the locality or may require evidence of ownership to be adduced.
Second paragraph
Relevance:First half of statement – maybe to issues (but opinion) ie whether true or not – statement
Second half – goes to show malice under s.3, is probative under s. 53
Could also go to credit – shows person who purposefully tries to harm
or Hooper and Gorman type argument, reckless towards official duties – running a respectable paper, because relevant to issues would not be excluded by s. 102
Hearsay:Is this used assertively?
First statement: For relevance to issue yes, but statement is not first hand hearsay under s. 62 (ie W did not have personal knowledge of asserted facts) so cannot fall under first hand hearsay – Inadmissible
Second statement: Need to use assertively to prove malice but maybe relates to state of mind (non-assertive) Bull type problem is that is after the event, could argue presumption of retrospective continuance as in Mason v Tritton. Otherwise may use first hand hearsay exceptions. Maker of statement is D, who had personal knowledge and is given by W who perceived the representation so fit under s. 64 (3) if fresh – period of approximately 2 weeks. In Graham held hours or days but on
R v Gilbert Adam suggest week – debatable.
Could also be a partial admission under s. 87 and 82 – satisfies requirements but may be equivocal – could argue not malice but fact was in the public interest - might not satisfy s.87.
Opinion:Even if admissible by hearsay first statement is an opinion and would be asserting facts s. 76 applies unless lay opinion s. 78 but is not based on a non assertive, what saw or perceived so inadmisssable. The D may request that judge make direction that the D’s statement should not be used as going to credit s.136 – as unlikely to have SPV consideration of s. 103 – so may be unfairly prejudicial – jury give too much weight.
Question 2
XXM so leading questions permissible: s. 42
Relevance:Not relevant to issues. Goes to W’s credit, motive for giving misleading if not false evidence (because was lie). However in Umaski held that although this goes to credit – willingness to disregard public duty doesn’t go to bias. Situation here different depending of whether bribed or not successful
Credibility:s. 102 not relevant because in XXM. But s. 103 applies. Is there SPV, look at requirements under s.103 (2)
(a)nothing to indicate that this is the case – false reps
(b)short period probably because related to this cause of action
Could rationally affect the assessment of the credit of the W: R v ROS (?) – likely to be satisfied here.
Hearsay:None of the statements are used assertively; simply to show they were said - go to …(?). Questions 1 and 2 are preliminary – leading in to relevant question . Perhaps B could argue prejudice because discrediting prime W but in Papakosmos and Lockye held prejudice must be unfair not simply prejudicial to case under s.135.
Question 3
Relevance:Probative to an assessment of damages under s. 3. S. 55 relevant to issues.
Hearsay:Is s. 59 infringed by reference to criterion in manual, no basis of opinion and only to show stated not prove the truth of the criterion.
Opinion:Q is expressing an opinion, and attempts to prove the truth of the facts on which the opinion is based under s. 76 (l) - this is prima facie excluded. But there are exceptions. The lay opinion is not appropriate in this Q’s evidence doesn’t completely satisfy s. 78 (a) and would appear she is an expert. Look to s.79.
- Does Q have specialised knowledge. What is her field of knowledge – psychology is a recognised field and so probably cannot be excluded as lacking rational foundation.
- Is knowledge based on training study or experience – yes – PhD – study
- Is Q straying beyond her field of expertise. This is debatable, using psychiatrists manual so could argue is, but if DSM acknowledge used by other persons – would need to know which other people. If is not qualified here, evidence will be excluded as in Bugg v Day.
- Is there a basis for her opinion – P would need to adduce evidence of state of health of P only provisionally relevant expert opinion until then s. 57. Documentary evidence is being referred to so must satisfy s. 48 and authenticate L (?). No discretions would appear to be enlivened.
Questions 4 and 5
Relevance:In considering relevance must look to answer question is seeking to elicit. Here would go to credit of the W, s. 102 precludes evidence going only to credit so only way that it could be admissible is if using s.106.
Credibility:This would require the evidence that W sought bribe to fall within one of the exception to s. 106. The only applicable one appears to be s. 106 (a) bias or motive for being untruthful. Here as mentioned before, similar to Umaski so may not qualify, unless make assumption that because D did not accept the bribe and W still giving evidence, is now biased for P (revenge because didn’t comply).
Problem here is that in XM in chief, D’s counsel is using leading questions and this is not permitted under s. 37 except in limited circumstances.
The first question suggests a conversation took place suggests answer and may be in issue but perhaps given previous evidence s. 37 (l) (d) applies and the matters is not in dispute.
Second question is not really leading if first accepted because know conversation took place, but does suggest W said something – would advise counsel for P not to object if first question admissible, but to object if neither are – would not preclude line of questioning, simply require rephrasing.
In connection with W’s answers. Is there a hearsay problem? No, goes to credit and adduced only to show that was said.
Then trial judge starts voir dire under s. 189 - trial within a trial to determine preliminary question. Seeking leave under s. 32 revive memory in court. The TJ has to give leave and under s. 32 (2) needs to consider certain factors.
(a) Here clear that W cannot remember adequately
(b)Was written or made by the D – unclear whether this is the case – who made note of conversation but D’s signature shows that he adopts the statement and therefore that he found it to be accurate. Is it fret (?), was made 5 days after conversation in Graham (?) held frets(?) required hours or days this close to a week – probably still within period.
Not binding consideration so up to discretion of jury. Would probably admit on this basis, can also have regard to s. 192 – other factors determining leave. D’s counsel would submit leave should be given because satisfies in substance consideration in s. 32 (R), P may argue that not clear who made the document and that 5 days is quite a while, ie ALRC suggests maybe only 24 hours is fresh (?).
May also argue that what D remembers is adequate.
Question 6
Jury comes back in at this point. TJ can permit D to read from the doc under s. 32 (3). It is not clear exactly how this provision works but it seems that D would have to claim memory revival (as is the case here) otherwise would create broad exceptions to hearsay (broader the first hand which would appear contrary to act
Also seems unnecessary for D to read out unless conversation is particularly long because could simply give oral evidence. P could argue should not give leave, argument that waste of time, have regard to s. 192 (c). D could argue that gives better evidence by analogy with Graham but in that case should adduce.
P could be permitted to examine the doc under s. 32 (4). In doing so they suffer “no penalty,” ie they are not required to tender the document see s. 35 but can use it for XXM.
What if D wanted to tender?
The representation would need to qualify under a first hand exception.
Is s. 62 satisfied: Makes of rep is D and had personal knowledge of conversation, his signing makes him the maker of written statement. Maker is available, this is a civil trial, does s. 64 apply? – D is giving evidence so look to s. 64 (3).
Under (a) D could give evidence of his prior rep under (b) if S saw it made could also give evidence. The doc would be rendered at he conclusion of XM in chief under s. 64 (4).
Notice would be required.
But needs to satisfy freshness requirements, again S day is borderline, from reasoning in Graham but see R v Gilbert Adam refers to weeks, 5 days probably okay, so can adduce it.
There is no double hearsay problem because the rep by D only says that W said certain words, not seeking to prove the truth of them.
Discretion to exclude under s. 135 (c) probably not – best evidence, see Graham.
Question 7
XXM, leading questions allowed s. 42
Relevance:Issues goes to motive for malice probative under s. 55, so admissible s. 56 as to credit shows a willingness to lie – should not be believed on oath, because relevant to issues s. 102 doesn’t apply unclear whether have to meet SPV of s. 103 in this case where goes to issues as well.
Hearsay:Does this breach s. 59 is it used assertively? To credit – no, simply to show words were said . To issues: First sentence could argue that goes to state of mind of malice, look to Bull reasoning probative value may be limited by the fact that the statement was made 2 months before hand – presumption of of malicious motive
So no hearsay problem – rest of paragraph explains state of mind.
If does: could consider whether falls within s. 106 – statutory indication of credibility issues with SPV. If W accepts insinuation in question may show should not be believed on oath Wren. Maybe direction to jury appropriate if doesn’t meet SPV of s. 183 to use only to issues s. 13. If gets in as to credit but not issues i.e. hearsay is problem, could use s. 60 to make relevant to issues but – tendency) problem still there.
Opinion:But since it’s likely that he has been a dealer too, truth of matter irrelevant – relevant that opinion held so falls under s. 77.
Tendency:Could the P argue that this shows that D has a tendency to have a particular malicious state of mind towards P and to consider acting in way that involves publishing untrue and damaging statements.
s. 97 requires the evidence to have SPV. This will be the case where has happened often and consistently in similar circumstances and other events are well established, see Connor.
Here, only one other occurrence and threat not action and different target idea – but similar motive debatable whether SPV – probably not. This would affect discretion to exclude under s. 135
(a) unfairly prejudicial or misused if s. 97 not satisfy D could also seek direction that be limited to going to credit s. 136 if tendency provision now satisfied to prevent misuse by jury.
An additional problem here is that the P appears to have breached the rule in R v Chin which requires that as a matter of fairness the P should put its case and lead all available evidence on which it will rely so D can know what issues need to be addressed so evidence of H should have been led in chief or if this was not feasible, ie only wanted to use it to go to credit, then should have notified the D of this fact.
The judge has a discretion therefore to exclude the evidence which will probably do (?).
If admissable. If D denies and it goes to issues then can clearly adduce evidence in own case, however if it is only admitted as to credit would need to satisfy s. 106 rebutting denials because of finality rule.
Does it fall within an exception: no tendency to make threats not relevant see Regina v Fleming. No exceptions apply.
Question 8
Relevance:Goes to credit of W – showing made statements denial in XXM which shows disregard of public duties, and perhaps bias.
Credibility:Would have to be under s. 106 because goes solely to credit, my exceptions ? s. 106 (a) maybe – similar discuss (?) to questions 4 and 5.
Browne v Dunn issue here (?)
XXM course must put to the W whatever challenge is offered to her evidence and put the substance of any testimony that is to be adduce to contradict is so that W may have the chance to explain
Reid v Kerr (?)
Here D never put to W that would challenge statement on the basis that some one else was party to the conversation and would claim she said the relevant statement. If had she could have adduced evidence to explain or deny her presence. Whether the rule has in fact been breached may depend on interpretation of no what the rule requires the XXMer to do.
I.e Reid v Kerr requires particular respects in which W’s evidence is to be challenged to be noted, whereas ALRC required only substance but surely substance would require mention of M. Penalty will probably be now to recall the W, under s. 46 of the Act. There are other possibilities, exclude, direct but s. 46 more likely.
P may argue that should be excluded order s. 135 (c) anyway because waste of time as D has already given evidence regarding conversation – duplication but if D’s credit in question maybe not be a waste.
Question 9
D could make a no-case submission (though seems to be the wrong time) claiming that P has not discharged its evidential burden on a particular issue having regard to the standard of proof (here balance of probabilities) on that issue. The jury would leave for this submission and judge determines. The test is could the evidence if taken at its highest (and ignoring its weaknesses) justify a reasonable jury in affirming the proposition that the proponent (ie party who bears the evidential burden) is bound to maintain in relation to the issue in question.
In this case D would claim hadn’t satisfied evidential burden with respect to public interest and whether qualified.
P would argue that this is a statutory provision and that in applying Chugy) principles can see statute intended the D to bear the evidential burden with respect to s. 4 as constitutes a confession and avoidance.
Chugy requires looking at.
- Form of provision: Here a general liability is cast and so it provides an exception, separate provision looks like defence, D should bear burden.
- Civil case so weaker presumption that onus on P.
- Ease of proof: Would the matter lie particular within knowledge of D, yes if claim true must have some basis.
- There is no real proliferation of issues case looks similar to Van Schaik.
P has legal burden but D bears evidential burden in respect of s. 4.
No-case would probably not succeed as P seems to have discharged all other evidential burdens.
If P did bear evidential burden and failed to call business partners to deny that if was truth this could ground a Jores v Dunkel. direction as P’s would be misusing W’s - could give relevant evidence and absence unexplained Payne v Parker, so more reading accept D’s evidence and inferences to be drawn, but can’t make up deficiency of evidence but since onus on D, this not in issue.