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31 Pages • Complete Study Notes • Year: Pre-2019
Relevance 3 Key Notes 3 (1) What is the Fact in Issue? 3 (2) Relevant to the Fact in Issue? 3 (3) Does it Rationally Affect the Probability of the Existence of the Fact? 3 (4) Apply the JDA (Criminal Proceedings) 4 Competence 4 (1) Is the X competent? s13 EA 4 (1A) Is the X competent? s17 EA 4 (2) Is the evidence sworn or unsworn? 4 (3A) If the witness a child? (Civil Proceedings) 4 (3B) If the witness a child? (Criminal Proceedings) 5 (3C) For sexual offence, serious assault, family violence 5 Compellable 5 (1) Can X be Compelled to give Evidence? s18 EA 5 (2) Can the Accused be Compelled to give Evidence? s19 EA 6 Key Notes 6 Privilege: Privilege Against Self-Incrimination 6 (1) Scope of the Privilege 6 (2) Was there “reasonable grounds” for the objection? 6 (3) If there are reasonable grounds… 7 (4) If X continues objects, they may be compelled 7 (5) X gets a Certificate if… 7 (6) Effect of a Certificate 7 Privilege: Client Legal Privilege (CLP) 7 (1) Identify the objection and information 7 (2) Scope of CLP 8 (3) Is the information is a “communication” or a “document” 8 (4) Is the communication or document “confident” and entitled to privilege? 8 ‘Dominant Purpose’ Test 8 Third Party Communications (s118) 8 Copies of Non-Privileged Documents 8 (5) Exceptions to CLP 9 (a) Expressed Waiver 9 (b) Implied waiver 9 (c) Misconduct 9 (d) Associate Accused 9 (e) Other 9 Privilege: Settlement Negotiations 10 Privilege: In Relation to Sexual Offences 10 EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - 32AB Guiding principles 10 Privilege: Public Interest Immunity 11 (1) Does the evidence relates to a “matter of state”? 11 (2) Factors Court Should Consider (s130(5)) 11 (3) Consider Case Law 11 Examination 12 (1) Examination-in-Chief 12 (a) Leading Questions 12 (b) Refreshing Memory 12 (c) Prior Consistent Statements (PCS) 13 (d) Unfavourable Witnesses 13 (2) Cross-Examination (XE) 13 (a) Leading Questions 13 (b) Credibility Evidence 14 (c) Prior Inconsistent Statements (PIS) 14 (d) Character Evidence Rule 14 (e) Improper Questioning (s41 EA) 15 (3) Re-Examination 15 Credibility and Character 15 (1) Credibility Evidence 15 (2) Character Evidence (Criminal Proceedings) 16 (a) Character of the Accused 16 (b) Character of Co-Accused 16 (c) XE of Accused or Co-Accused’s Character 16 (3) Character of the Complainant in Sexual Offences 16 (a) General Rules 16 (b) Rules under the JDA 17 Right to Silence 18 (1) Pre-Trial Silence 18 (2) Silence at Trial 18 (a) Note OLD CL cases 19 (b) Jury Directions 19 Tendency and Coincidence Evidence 19 (1) Res Gestae 20 (2) Tendency Evidence 20 (3) Coincidence Evidence 20 (4) Was there Significant Probative Value? 20 (a) Tendency Considerations 20 (b) Coincidence Considerations 20 (5) If Criminal, is PV > PE? 21 (5) Cases 21 Hearsay 23 (1) Hearsay Rule 23 (a) What is the Representation? 23 (b) What is the Asserted Fact 23 (c) Was the assertion intended or unintended? 23 (d) Does the representation prove the truth? 23 (f) Is it 1HH/2HH? 23 (2) General Exceptions 24 (a) Non-Hearsay Purposes 24 (b) Was the maker competent? 24 (c) Contemporaneous statement of health 24 (3) 1HH Exceptions 24 (a) Civil: Maker is not available [s63(1) EA] 24 (b) Civil: Maker is available [s64(1) EA] 24 (c) Criminal: Maker is not available [s65(1) EA] 25 (d) Criminal: Maker is available [s66(1) EA] 25 (e) Business Record Rule 25 (4) If HH is Admissible 26 Admissions 26 (1) Is it Hearsay or Opinion Evidence 26 (2) Is there an Admission? 26 (3) Confessions made in Police Custody 27 (a) Tape Recording Confessions (s464H CA) 27 (b) Exceptions 28 (4) Reliability of Admissions 28 (a) Is the Admission Voluntary? (s84 EA) 28 (b) Is the Admission Reliable? (s85 EA) 28 (5) Discretion to Exclude 28 (a) s135 & s137 28 (b) Fairness Discretion (s90 EA) 28 (c) Improperly or Illegal Obtain Evidence (s138 EA) 29 (d) Residual Common Law Discretion 29 Illegally Obtained Evidence 29 (1) Was it Illegal or Improper? 29 (2) Factors to Consider (s138(3) EA) 30 Opinion Evidence 30 (1) Identify the Opinion 30 (2) Exceptions to the Rule 30 (a) Lay Opinions (s78 EA) 30 (b) Expert Opinions (s79 EA) 31 (3) Exclusion of Opinion Evidence 31 (a) High Prejudicial Effect 31 (b) Character Evidence in the form of Opinion Evidence 31
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