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Week 2 - Relevance and Admissibility, Proof without evidence and Judicial…

- - - - s 55: that relevant evidence is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’
      - Section 56: Relevant evidence is admissible unless otherwise excluded; evidence not relevant is inadmissible.
    - - means that it must relate to something which remains a matter of disagreement between the parties
      - What is a fact in issue?
        
        A fact that needs to be proved (by those with the ultimate burden) to be successful in the case.
        
        For civil cases see;
        
        Goldsmith v Sandilands (2002) 190 ALR 370, 377
        
        Whether a fact is a fact in issue depends on the pleadings and particulars of each party’s case. The facts in issue reflect the material facts that constitute the claimant’s cause of action  which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts. The facts in issue also include those material facts that provide any justification or excuse for, or a defence to, the cause of action.
        
        For criminal cases
        
        the facts in issue relate to those elements that the prosecution needs to prove and any defence the accused raises
    - - evidence could rationally affect the assessment of the fact
        
        Re Van Beelen (1974) 9 SASR 163, 193.
      - A mere logical connection (or bare relevance) between the evidence and a fact in issue is not enough – there has to be a sufficient connection (legal relevance).
        
        R v Stephenson [1976] VR 76
    - - . Often the purpose of evidence is to assist the court to understand direct evidence; or to provide context for that evidence
        
        . This form of secondary evidence goes towards proving facts
        
        • by which the weight attached to other facts may be assessed; or
        • upon which the admissibility of other evidence depends.
        
        HML v The Queen (2008) 235 CLR 234
  - - - The admissibility rules are exclusionary, not inclusionary – they do not serve to demonstrate that particular evidence should be admitted; rather, they provide the means by which objectionable evidence can be prevented from admission.
        
        Chapter 3 of the Evidence Act 1995 (Cth) contains a flow chart
        
        In your textbook, Field has helpfully classified all of these rules of admissibility according to their underlying purpose. He nominates three at [1.37]:
        
        • Evidence excluded because it has a tendency to mislead rather than inform.
        
        • Evidence excluded on the ground of public policy: This evidence is excluded because the damage it might do to our system of justice outweighs the good it might do in convicting an individual offender. Examples are evidence collected unlawfully and evidence which a person seeks to withhold by asserting a privilege.
        
        • Evidence excluded because it is unreliable: This includes hearsay evidence (evidence by one person about something they heard from another person) and opinion evidence (evidence which interprets a fact rather than presenting a fact).
        
        Remember that evidence may be inadmissible for one purpose but admissible for another: Subramaniam v Public Prosecutor [1956] 1 WLR 965.
        
        Rationale for exclusion of evidence
        
        Because the evidence would be likely to mislead rather than inform
        
        Because public policy demands that the evidence be exluded
        
        Because the evidence is inherently unreliable
- - - - If something is so well known that ‘every ordinary person may reasonably be presumed to be aware of it’ then there will be no need to provide evidence: Holland v Jones (1917) 23 CLR 149
    - - Evidence Act 1995 (Cth) s 144
        
        to take judicial notice of knowledge it must ‘not be reasonably open to question’ and must be ‘common knowledge in the locality in which the proceeding is being held or generally; or capable of verification by reference to a document the authority of which cannot reasonably be questioned’:
    - - The prosecution, responding to the appeal, successfully argued that the fact that cats are domestic pets is so notorious that judicial notice should be taken of it.
    - - Judicial notice can be summarised as covering two broad types of fact
        
        • matters of such common knowledge that they are rarely contentious. These cover broad classes of indisputable scientific, medical, cultural, and historical facts, including: the laws of physical nature; well-known social habits and usages; and notorious historical events, such as World War II; and
        
        • matters the court may be assumed to know already by virtue of its stature and expertise, such as the validity of legislation put before it.
  - - - circumstantial evidence
        
        common types of presumptions
        
        possession of recently stolen property
        
        Maslin v Searle (2010) 202 A Crim R 159
        
        Continuance
        
        a state of affairs existed that existed earlier is likely to have remained in existence at the time in question.
        
        R v Buchanan [1966] VR 9
        
        Carian v Elton [2006] NSWCA 168
        
        Res ipsa loquitur
        
        Scott v London and St Katherine Docks Co (1865) 159 ER 665
        
        .... where the thing is shown to be under the management of the defendant or servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
        
        In Australian courts
        
        Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 133
        
        it is not a distinctive, substantive rule of law, but an application of an inferential reasoning process
      - 'invites' the court to draw certain inferences from certain basic facts
    - - greater legal significance
      - 'oblige' the court the draw further conclusions in the absence of rebutting evidence
      - Common law presumption of innocence
      - Common law presumption of 'regularity'
      - Common law presumption of legitimacy
      - Presumption of the accuracy of scientific instruments
        
        examples are breathalyzers, radar guns etc.
        
        R v Anderson [2006] 1 Qd R 250
      - Presumption of lack of criminal capacity of a person aged under 14 years
        
        Criminal Code (Qld) s 29(2)
      - Presumption of the involuntariness of a confession following a threat or inducement
        
        Criminal Law Amendment Act 1984 (Qld) s 10 confessions
      - Presumption of sanity
        
        Criminal Code (Qld) s 26
  - - - The case will proceed on the assumption that the formally admitted fact is true, without any further inquiry and without any further need for evidence.
    - - as an example parties may agree to the contents of a contract prior to court
      - Pleadings - formal documents in which each party lays out its claim, its defence and (if applicable) its counter claim against others.
      - Interrogatories - formal questions that must be answered on oath and are admissible against the party in the subsequent trial of action
      - notice to admit - a certain fact or facts
    - - defendant might admit the physical elements of an offence but might argue that the fault elements were not present they might admit all of the elements of the offence but argue that a defence applied
        
        If they do so, in open court, the prosecution will not be required to present evidence of those things which have been admitted: Criminal Code (Qld) s 644(2).
  - - - Cause of action estoppel (res judicata, double jeopardy): applies to the case as a whole, operates in civil and criminal cases
      - Issue estoppel: applies only to individual factual issues, only in civil cases
- - - - that it would be unfair to the accused to allow the evidence to be admitted
      - and that the evidence was collected unlawfully.
      - that the prejudicial danger of the evidence outweighs its probative value;
  - - - sometimes see this discretion described as a
        Christie discretion
        
        British case R v Christie [1914] AC 545, but in Australia there is more sound modern authority for the discretion.
        
        Pfennig v The Queen (1995) 182 CLR 461
        
        R v Succarieh [2016] QSC 245 for an example of a case where evidence was not excluded on this ground.
        
        Uniform Evidence laws give this discretion a statutory basis without altering its form at all: see Evidence Act 1995 (Cth) s 137.
  - - - discretion is variously called the unfairness discretion, the fairness discretion, or the
        Lee discretion
      - there is something in the nature of the evidence, or in the way it was collected, which makes it unfair to the accused to use
        
        contrast the two decisions in R v Swaffield; Pavic v R (1998) 192 CLR 159, two matters which were heard together by the High Court and which received a combined judgment.
        
        Swaffield
        
        The lower courts had allowed Swaffield’s appeal that the confession should be inadmissible due to unfairness. The High Court also excluded the evidence.
        
        Pavic
        
        He pleaded guilty to manslaughter but was convicted for murder. He appealed, unsuccessfully, against the use of the recorded confession.
        
        . The only way the unfairness discretion applies in situations where confessions are made to those other than police, is when the person speaking to the accused is an agent of the police and when they are acting within the scope of that authority: R v Fraser [2004] 2 Qd R 544.
        
        This discretion does not have an exact counterpart in the Uniform Evidence laws, but is likely to be sufficiently covered by a general discretion provided, for instance, in Evidence Act 1995 (Cth) s 135.
    - - • Unreliable; or
      - • Obtained in Breach of a Procedural Right (Foster (1993) 113 ALR 1) – eg. Right to Liberty, Right to Silence.
  - - - The matter was appealed, eventually to the High Court, which convicted Bunning by majority. There was no majority ratio decidendi in the case: some of the judges found that there had been no unlawfulness by police; others found that while the provisions of the Act had not been complied with, the noncompliance was not deliberate or sinister, and was sufficiently trivial that the true public interest was in the conviction of the offender.
- - - - • deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; o
      - • encouraging the parties to narrow the issues and any other administrative arrangement to assist the speedy disposition of the trial.
  - - - In short, there is no set rule and the judge may lay the onus of proof wherever it appears appropriate.
    - - the civil standard – the balance of probabilities – is much more likely to apply. In the end, though, the true standard is ‘to the satisfaction of the judge’