Uniform Evidence

✍ Scribed by Jeremy Gans, Andrew Palmer

• Publisher: OUP Australia & New Zealand
• Year: 2014
• Tongue: English
• Leaves: 460
• Edition: 2
• Category: Library

✦ Synopsis

Uniform Evidence Second Edition is a clear and concise introduction to the rules of evidence, as they apply to Australian courts. Written in an engaging and accessible style, the second edition covers all uniform evidence law jurisdictions including the courts of the Commonwealth, New South Wales, Australian Capital Territory, Victoria, Tasmania and most recently the Northern Territory.

The book explains and critiques uniform evidence law in an accessible and student friendly style, with case examples to illustrate the practical applications of uniform evidence law and flowcharts to clearly summarise complex legal rules and issues.

✦ Table of Contents

CONTENTS
Preface
Acknowledgments
Table of Cases
Table of Statutes
CHAPTER 1: UNIFORM EVIDENCE LAW
1.1 Evidence law
1.1.1 Promoting accurate fact-finding
1.1.2 Competing goals
1.2 Uniform law
1.2.1 Application
1.2.2 Development
1.2.3 Accessibility
1.3 Other laws
1.3.1 Other statutes
1.3.2 Common law
1.3.3 Overseas law
1.3.4 Human rights law
PART 1: ADDUCING EVIDENCE
CHAPTER 2: WITNESSES
2.1 Competence and compellability of witnesses
2.1.1 Sworn and unsworn evidence
2.1.2 Tests for competence
2.1.3 Compellability
2.1.4 The defendant in criminal proceedings
2.1.5 The defendant’s family
2.2 Failure to call witnesses
2.2.1 Civil proceedings
2.2.2 Criminal proceedings
2.2.3 The evidential significance of the defendant’s failure to testify
2.3 The examination of witnesses
2.3.1 Manner and form of questioning
2.3.2 The role of the judge
2.3.3 Examination-in-chief
2.3.4 Cross-examination
2.3.5 Re-examination
2.3.6 Special arrangements for testifying
CHAPTER 3: DOCUMENTARY AND REAL EVIDENCE
3.1 Documents
3.1.1 The purposes for which the contents of documents can be adduced
3.1.2 What is a document?
3.1.3 Secondary evidence of the contents of a document
3.1.4 Authentication of documents
3.2 Particular kinds of documents
3.2.1 Audio and video recordings
3.2.2 Photographs
3.2.3 Maps, models, charts and diagrams
3.2.4 Computer-generated evidence
3.2.5 Voluminous and complex documents
3.3 Real evidence
3.3.1 Introduction
3.3.2 General principles
3.3.3 Physical objects
3.3.4 Views
PART 2: ADMISSIBILITY
CHAPTER 4: RELEVANCE
4.1 The fundamental rule of evidence
4.1.1 Definition of relevance
4.1.2 Relevant to what?
4.1.3 How much of an effect on the probabilities?
4.2 The different ways in which evidence can be relevant
4.2.1 Direct evidence
4.2.2 Circumstantial evidence
4.2.3 An illustration of the difference
4.3 Applying the test of relevance
4.3.1 A matter of common sense
4.3.2 Spelling out the connections
4.3.3 Decisions on relevance
4.4 Provisional relevance
CHAPTER 5: THE HEARSAY RULE
5.1 Rationale for the hearsay rule
5.1.1 The law’s response
5.1.2 Justification for the retention of a hearsay rule in the uniform evidence legislation
5.2 Scope of the hearsay rule
5.2.1 Hearsay defined in section 59(1)
5.2.2 ‘Representation’
5.2.3 ‘Previous representation’
5.2.4 ‘Made by a person’
5.2.5 Hearsay uses of a previous representation
5.2.6 Non-hearsay uses of a previous representation
5.2.7 The requirement of intention
5.2.8 Establishing intention
5.3 Contemporaneous mental and physical states
5.3.1 Inferring mental and physical states
5.3.2 Inferences from physical and mental states
5.3.3 Limitations on section 66A
5.4 Evidence relevant for a non-hearsay purpose
5.4.1 Section 60(1)
5.4.2 Second-hand hearsay and admissions
5.4.3 Interaction with other exceptions
5.4.4 Using the discretions to limit the use of evidence admissible pursuant to section 60
CHAPTER 6: HEARSAY EXCEPTIONS
6.1 The role of hearsay exceptions
6.1.1 Rationale for hearsay exceptions
6.1.2 Development of the exceptions
6.1.3 Effect of the exceptions
6.1.4 Limiting the exceptions
6.2 First-hand hearsay
6.2.1 General requirements for first-hand hearsay
6.2.2 First-hand hearsay in civil proceedings
6.2.3 Representations of testifying witnesses in criminal proceedings
6.2.4 Other first-hand hearsay adduced by the defence
6.2.5 Other first-hand hearsay adduced by the prosecution
6.3 Remote hearsay
6.3.1 Business and other routine records
6.3.2 Descriptions of objects and messages
6.3.3 Evidence of reputation and traditions
6.3.4 Evidence in interlocutory proceedings
CHAPTER 7: OPINION
7.1 The opinion rule
7.2 Permitted opinions
7.2.1 Necessary communication of eyewitness perceptions
7.2.2 Opinions substantially based on specialised knowledge
7.2.3 Other opinions
7.3 Managing expert opinions
7.3.1 Subject-matter
7.3.2 Foundational facts
7.3.3 Communication
CHAPTER 8: ADMISSIONS
8.1 Adverse inferences
8.1.1 Adverse inferences from a party’s previous representation
8.1.2 Adverse inferences from a person’s silence
8.2 Excluding admissions
8.2.1 Scope of the exclusionary rules
8.2.2 Oppressive influences
8.2.3 Potential unreliability
8.2.4 Unfair use
8.3 Proving admissions
8.3.1 Requirement for first-hand evidence
8.3.2 Requirements for written admissions
8.3.3 Requirement for electronic recordings
8.3.4 Proof of admissibility
CHAPTER 9: JUDGMENTS AND CONVICTIONS
9.1 The exclusionary rule
9.2 Exceptions to the rule
CHAPTER 10: TENDENCY AND COINCIDENCE
10.1 Tendency and coincidence reasoning
10.1.1 Tendency reasoning
10.1.2 Coincidence reasoning
10.1.3 Pattern reasoning
10.1.4 Other circumstantial reasoning
10.2 The exclusionary rules
10.2.1 Notice
10.2.2 Significant probative value
10.2.3 Exceptions to the tendency and coincidence rules
10.3 Tendency evidence about rape complainants
10.3.1 Scope of the rape shield laws
10.3.2 The exclusionary rules
10.3.3 Permitted reasoning about sexual behaviour
CHAPTER 11: CREDIBILITY
11.1 The nature of credibility evidence
11.2 The relevance of credibility evidence
11.3 The admissibility of credibility evidence
11.3.1 Overview of the credibility rules
11.3.2 Scope of the credibility rules
11.3.3 The distinction between relevance to credibility and relevance to issue
11.3.4 Distinguishing between credit and issue
11.4 Cross-examination as to credibility
11.5 Rebutting denials by other evidence
11.5.1 The general rule
11.5.2 Exceptions to the rule
11.5.3 Triggering the operation of the exceptions
11.5.4 Applying the exceptions
11.5.5 Rebutting the rebuttal
11.6 Rehabilitating credibility
11.6.1 Re-examination
11.6.2 Prior consistent statements
11.7 The credibility of hearsay
11.8 Expert evidence
11.9 The credibility of complainants in sexual offence trials
11.9.1 Delay
11.9.2 Sexual history evidence
CHAPTER 12: CHARACTER
12.1 Tendency and coincidence evidence about the defendant
12.1.1 Probative value
12.1.2 Prejudicial effect
12.1.3 The exclusionary rule
12.1.4 Tendency and coincidence evidence about sexual offence defendants
12.2 The defendant’s credibility
12.2.1 The defendant’s character shield
12.2.2 Loss of the character shield
12.3 The defendant’s character
12.3.1 Proving good character
12.3.2 Proving lack of good character
12.3.3 The character of co-defendants
12.4 Managing character evidence in jury trials
12.4.1 Managing information
12.4.2 Managing trials
12.4.3 Managing reasoning
CHAPTER 13: IDENTIFICATION
13.1 Identification evidence
13.1.1 Definition of ‘identification evidence’
13.1.2 The dangers of identification evidence
13.1.3 Mandatory warning
13.2 Identification procedures
13.2.1 Identification parades
13.2.2 Picture identification
13.2.3 Discretionary exclusion
CHAPTER 14: PRIVILEGES
14.1 The law of privilege
14.1.1 Powers to compel disclosure
14.1.2 The public policy basis of the law of privilege
14.1.3 Effect of a claim of privilege
14.1.4 Scope of the uniform evidence legislation privileges
14.2 Professional confidential relationship privilege
14.3 Journalist privilege
14.4 Sexual assault counselling privileges
14.5 The privilege against self-incrimination
14.5.1 Justification for the privilege
14.5.2 Scope of the privilege
14.5.3 Determining the claim
14.5.4 Overriding the privilege
14.5.5 Criminal defendants
14.5.6 Corporations
14.6 Evidence of matters of state
14.6.1 The nature of section 130
14.6.2 The interest in non-disclosure
14.6.3 The interest in disclosure
14.6.4 The balancing exercise
14.6.5 Court inspection
14.7 Evidence of settlement negotiations
14.8 Other privileges
CHAPTER 15: CLIENT LEGAL PRIVILEGE
15.1 Justification for the privilege
15.2 Scope of the privilege
15.2.1 Confidential communications and documents
15.2.2 The first privileged purpose—providing legal advice: section 118
15.2.3 The second privileged purpose—litigation: section 119
15.2.4 Unrepresented parties
15.2.5 The dominant purpose test
15.2.6 The making of an objection
15.2.7 Client and lawyer
15.2.8 Copies of unprivileged documents
15.3 Loss of privilege
15.3.1 General loss of privilege
15.3.2 Acting inconsistently with the maintenance of the privilege
15.3.3 Evidence relevant to the defence of the accused in criminal proceedings
15.3.4 Joint clients
15.3.5 Misconduct
15.3.6 Related communications and documents
CHAPTER 16: DISCRETIONARY AND MANDATORY EXCLUSIONS
16.1 Nature of discretion
16.1.1 The role of the discretions in the uniform evidence legislation
16.2 The general discretion to exclude evidence
16.2.1 Probative value
16.2.2 Prejudicial effect
16.2.3 The balancing exercise
16.2.4 Misleading or confusing evidence
16.2.5 Time-wasting evidence
16.3 General discretion to limit use of evidence
16.4 Exclusion of prejudicial evidence in criminal proceedings
16.4.1 Application of the discretion
16.4.2 Alternatives to exclusion
16.4.3 Broader considerations of unfairness
16.5 Discretion to exclude improperly or illegally obtained evidence
16.5.1 Rationale for the discretion
16.5.2 Illegality or impropriety
16.5.3 Connection with illegality or impropriety
16.5.4 Operation of the exclusionary discretion
16.5.5 Relationship between sections 138 and 90
16.5.6 Application of the discretion: Covertly recorded admissions
PART 3: PROOF
CHAPTER 17: THE BURDEN AND STANDARD OF PROOF
17.1 The burden of proof
17.1.1 The legal burden
17.1.2 The evidential burden
17.1.3 The burden of proof on a voir dire
17.2 The standard of proof
17.2.1 Civil proceedings
17.2.2 Criminal proceedings
17.2.3 Facts relevant to the admissibility of evidence
CHAPTER 18: FACTS THAT CAN BE PROVED WITHOUT EVIDENCE
18.1 The doctrine of judicial notice
18.1.1 The effect of judicial notice
18.1.2 Australian law
18.1.3 Facts forming part of common knowledge
18.1.4 Facts that can be verified by reference to an authoritative document
18.1.5 Matters of state
18.2 Formal admissions and agreed facts
18.2.1 Civil proceedings
18.2.2 Criminal proceedings
CHAPTER 19: WARNINGS AND INFORMATION
19.1 Uniform evidence law directions
19.1.1 Unreliable kinds of evidence
19.1.2 Significant forensic disadvantage
19.2 Common law directions
19.2.1 Corroboration warnings
19.2.2 Fairness warnings
19.2.3 Factual directions
CHAPTER 20: PROCEDURAL PROVISIONS
20.1 The voir dire
20.2 Advance rulings
20.3 Waiver of the rules of evidence
20.4 The giving of leave, permission and directions
20.5 The facilitation of proof
20.6 Ancillary provisions
Index