Evidence Knowledge Test No. 1

Determining the admissibility of evidence

A two part scenario on relevance, hearsay, tendency/coincidence, and the discretions

Facts:

Simon Collins is charged with the murder of his wife. She drowned in the Collins’ pool at 3:00 am. At a bar which is a 30 minute drive away, the bar owner recalls speaking to somebody (whom the bar owner doesn’t know and can’t be found) at the bar at 2:45am who said 'Simon Collins just arrived so I’ll have 2 beers, thanks'. Simon seeks to have this evidence admitted.

1:What is the first question to ask in determining whether the evidence of the bar owner is admissible?
A)

Is the evidence hearsay?

Incorrect

The primary rule of admissibility is found in s 56 which provides that relevant evidence is admissible except as otherwise provided by the Act; evidence that is not relevant is not admissible. Section 56 should be considered first.

B)

Is the evidence relevant?

Correct

The primary rule of admissibility is found in s 56 which provides that relevant evidence is admissible except as otherwise provided by the Act; evidence that is not relevant is not admissible. Section 56 should be considered first.

C)

Is the evidence probative?

Incorrect

The primary rule of admissibility is found in s 56 which provides that relevant evidence is admissible except as otherwise provided by the Act; evidence that is not relevant is not admissible. Section 56 should be considered first.

D)

It does not matter which question is asked first.

Incorrect

The primary rule of admissibility is found in s 56 which provides that relevant evidence is admissible except as otherwise provided by the Act; evidence that is not relevant is not admissible. Section 56 should be considered first.

2:Is the evidence of the bar owner relevant?
A)

No, because it doesn’t prove that Simon is innocent.

Incorrect

Though it may be true that the evidence does not prove that Simon is innocent, it does not mean the evidence is not relevant. Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it will be less probable that Simon was at home at the time that his wife died and therefore less probable that he murdered his wife, the primary fact in issue in the proceeding.

B)

Yes, because it tends to show that Simon was drunk around the time of his wife’s death.

Incorrect

Though it may be true that Simon was drunk at the time of his wife’s death, there is a more obvious reason why the evidence is relevant. Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it will be less probable that Simon was at home at the time that his wife died and therefore less probable that he murdered his wife, the primary fact in issue in the proceeding. It may also be noted that if the evidence is accepted, it may be reasonable to question whether the fact that Simon was drunk at the time could rationally affect the probability of the existence of the fact that Simon murdered his wife, as the evidence would also place him at the bar at the time of her death – making intoxication immaterial.

C)

Yes, because if accepted it could rationally make more probable the fact that Simon was not at home at the time that his wife died.

Correct

Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it will be less probable that Simon was at home at the time that his wife died and therefore less probable that he murdered his wife, the primary fact in issue in the proceeding.

D)

Yes, because it has probative value in that it suggests Simon was not at home at the time that his wife died.

Incorrect

Though the evidence may have probative value, the test for relevance is not one of probative value. Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it will be less probable that Simon was at home at the time that his wife died and therefore less probable that he murdered his wife, the primary fact in issue in the proceeding.

3:Does the hearsay rule apply?
A)

Yes, because the evidence is of a previous representation.

Incorrect

Though s 59 may apply, more is required under that section for it to apply merely than the fact that the representation is a previous representation.

B)

No, because the fact which the evidence is sought to be admitted to prove is that Simon Collins was at the bar at 2:45am, which is not at all asserted by the maker of the previous representation.

Incorrect

The asserter says 'Simon has just arrived' so Simon’s presence at the bar at 2:45am is a fact asserted by the representation.

C)

No, because it cannot reasonably be supposed that the maker of the previous representation intended to assert the fact which the evidence is sought to be admitted to prove, that Simon Collins was at the bar at 2:45am.

Incorrect

The asserter says 'Simon has just arrived' so the most reasonable reading is that Simon’s presence at the bar at 2:45am is a fact asserted by the representation and that the asserter intended to assert that fact. It could at least be reasonably supposed that the asserter intended to assert the fact of Simon’s presence, so s 59 will apply.

D)

Yes, because the evidence is sought to be admitted to prove the fact that Simon Collins was at the bar at 2:45am, a fact that it can reasonably be supposed that the maker of the previous representation intended to assert.

Correct

As the asserter says 'Simon has just arrived,' Simon’s presence at the bar at 2:45am is asserted by the representation and it can reasonably be supposed that the maker of the previous representation intended to assert Simon’s presence, so s 59 will apply.

4:If an exception to the hearsay rule was to apply, which section would you look at?
A)

Section 63

Incorrect

The proceedings are criminal because Simon has been charged with murder. The maker of the statement can’t be found and is therefore unavailable within the meaning of Clause 4 of Part 2 of the Dictionary. Therefore s 65 should be examined as it contains the exceptions for criminal proceedings where the maker is unavailable.

B)

Section 64

Incorrect

The proceedings are criminal because Simon has been charged with murder. The maker of the statement can’t be found and is therefore unavailable within the meaning of Clause 4 of Part 2 of the Dictionary. Therefore s 65 should be examined as it contains the exceptions for criminal proceedings where the maker is unavailable.

C)

Section 65

Correct

The proceedings are criminal because Simon has been charged with murder. The maker of the statement cannot be found and is therefore unavailable within the meaning of Clause 4 of Part 2 of the Dictionary. Therefore s 65 should be examined as it contains the exceptions for criminal proceedings where the maker is unavailable.

D)

Section 66

Incorrect

The proceedings are criminal because Simon has been charged with murder. The maker of the statement can’t be found and is therefore unavailable within the meaning of Clause 4 of Part 2 of the Dictionary. Therefore s 65 should be examined as it contains the exceptions for criminal proceedings where the maker is unavailable.

5:Which subsection in s 65 is most likely to apply?
A)

Subsection 65(2)

Incorrect

While subsection 65(2)(c) may apply, subsection 65(8) is more relevant, as it does not require the judge to consider the question of whether the statement may be a fabrication or whether it is likely to be reliable.

B)

Subsection 65(3)

Incorrect

The statement was not made in an Australian or overseas proceeding.

C)

Subsection 65(8)

Correct

The subsection most likely to apply is s 65(8). The statement is evidence that is sought to be adduced by an accused and it is given by the person who heard the representation being made.

D)

Subsection 65(9)

Incorrect

Subsection (9) only applies if the accused has already adduced evidence of a previous representation and allows other representations about the matter to be adduced. It is not applicable to the initial question of admitting evidence of a previous representation.

6:Suppose that the evidence fell into a hearsay exception. What other section(s) should you consider in determining whether the evidence is admissible?
A)

Section 76

Incorrect

As the evidence would not ordinarily be construed as evidence of an opinion, s 76 is unlikely to be necessary to consider.

B)

Section 135

Correct

Section 135 should be considered after the preceding analysis. The evidence might be excluded under s 135 as it could be unfairly prejudicial to the prosecution, the maker not being available to cross-examine.

C)

Section 136

Incorrect

Though s 136 as a general discretion should typically be considered, it is not clear how the use of the representation in question could be limited. It is more likely that s 135 would apply (or not apply) as the evidence would most likely have to be wholly included or excluded.

D)

Section 137

Incorrect

Section 137 will not be necessary to consider as the evidence in question would not be adduced the prosecutor but by the defendant.

Part 2 Facts:

The Prosecution discovers that Simon attempted to drown his daughter 8 years earlier. The Prosecution seek to have this evidence admitted to prove that Simon has a tendency to drown people.

7:Is the evidence of the attempted drowning relevant?
A)

No, as the mere fact that Simon attempted to drown his daughter on a previous occasion does not infer that he drowned his wife on this occasion.

Incorrect

Although it may be true that the prior conduct does not infer that Simon drowned his wife on this occasion, evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it could rationally make it more probable that Simon has a tendency to drown people, and therefore that he drowned his wife.

B)

Yes, because it is evidence of conduct which if accepted could rationally make it more likely that Simon has a tendency to drown people, and therefore that he drowned his wife.

Correct

Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it could rationally make it more probable that Simon has a tendency to drown people, and therefore that he drowned his wife.

C)

Yes, because Simon attempted to drown his daughter, and his wife also drowned, so rationally the only person who could have drowned Simon’s wife is Simon.

Incorrect

Though the evidence may suggest a tendency, it does not suggest that the only person who could have drowned Simon’s wife is Simon. However the evidence is relevant, but for another reason. Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it could rationally make it more probable that Simon has a tendency to drown people, and therefore that he drowned his wife.

D)

Yes, because it is evidence of conduct which is probative, making it rationally more likely that the person who drowned Simon’s wife is Simon.

Incorrect

The test under s 55 does not require probative value. Evidence will be relevant under s 55 so long as if accepted it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Here, if the evidence is accepted it could rationally make it more probable that Simon has a tendency to drown people, and therefore that he drowned his wife.

8:What is the next section that you should consider after considering s 56?
A)

Section 97

Correct

The prosecution seek to have the evidence admitted to prove that Simon has a tendency to drown people, and so s 97 is the next step.

B)

Section 98

Incorrect

Although the evidence might possibly be characterised as coincidence evidence, a more accurate reading is that the evidence is used to prove a tendency, not that the events did not occur as a coincidence. Moreover, the prosecution seek to have the evidence admitted to prove a tendency, so s 97 is a better answer.

C)

Section 101

Incorrect

Section 97 should be considered before s 101.

D)

Section 135

Incorrect

Whether the evidence is inadmissible as tendency evidence should be considered before the general discretions are considered.

9:What is/are the threshold requirement(s) that make s 97 a live issue?
A)

The evidence is of character, reputation or conduct.

Correct

Under s 97 the evidence must be of character, reputation or conduct.

B)

The evidence tends to show that a person has a tendency to act in a particular way.

Incorrect

Section 97 is a 'use' or 'purpose' rule. It is not necessarily that the evidence tends to show a tendency that makes s 97 a live issue. What makes it a live issue is that the evidence is sought to be admitted to prove that Simon has a tendency (or that the evidence if admitted would be used to prove that tendency).

C)

The evidence is sought to be admitted to prove that the person has a tendency to act in a particular way.

Correct

Under s 97 the evidence must be sought to be admitted to prove that a person has a tendency to act in a particular way.

D)

The evidence is unfairly prejudicial.

Incorrect

Whether the evidence is prejudicial may be relevant for s 101 but is not relevant for s 97.

10:Which is typically required for s 97 to be overcome?
A)

Notice is given.

Correct

Notice must be given under s 97(1)(a). Note that the court may dispense with notice requirements under s 100.

The evidence must also have significant probative value (s97(1)(b)). Note that probative value is defined in the Dictionary.

B)

The evidence is significantly relevant.

Incorrect

What is required under s 97(1)(b) is that the evidence has significant probative value, not significant relevance.

C)

The evidence has significant probative value.

Correct

Under s 97(1)(b) the evidence must have significant probative value. Note that probative value is defined in the Dictionary.

The party must also give notice that it will adduce the evidence (s97(1)(a)). Note that the court may dispense with notice requirements under s100.

D)

The probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Incorrect

Prejudicial effect is a relevant consideration for s 101, not s 97.

11:Which of the following are relevant considerations in determining whether the evidence has significant probative value under s 97?
A)

The degree of specificity of the alleged tendency (drowning, as opposed to the wider tendency 'murdering' or as opposed to the narrower tendency of 'drowning in a pool').

Correct

The more specific the alleged tendency, the more probative the evidence.

The court should also consider the following matters:

  • The similarity of the tendency alleged (tendency to drown) and the manner in which Simon's wife died - The more similar the tendency alleged and the conduct in question, the more probative the evidence; and
  • The time gaps between the conduct and the time of Simon's wife's death (8 years) - The shorter the time gaps between the conduct demonstrating a tendency and the event in question, the more probative the evidence.
B)

The similarity of the tendency alleged (tendency to drown) and the manner in which Simon’s wife died.

Correct

The more similar the tendency alleged and the conduct in question the more probative the evidence.

The court should also consider the following matters:

  • The degree of specificity of the alleged tendency (drowning, as opposed to the wider tendency 'murdering' or as opposed to the narrower tendency of 'drowning in a pool') - The more specific the alleged tendency, the more probative the evidence; and
  • The time gaps between the conduct and the time of Simon's wife's death (8 years) - The shorter the time gaps between the conduct demonstrating a tendency and the event in question, the more probative the evidence.
C)

The fact that Simon alleges he was at a bar far away from his house so he could not have drowned his wife.

Incorrect

Though the evidence of the bar owner may be relevant to whether Simon has an alibi or not, it does not add or detract to the probative value of the tendency evidence in question.

D)

The time gaps between the conduct and the time of Simon’s wife’s death (8 years).

Correct

The shorter the time gaps between conduct demonstrating a tendency and the event in question, the more probative the evidence.

The court should also consider the following matters:

  • The degree of specificity of the alleged tendency (drowning, as opposed to the wider tendency 'murdering' or as opposed to the narrower tendency of 'drowning in a pool') - The more specific the alleged tendency, the more probative the evidence; and
  • The similarity of the tendency alleged (tendency to drown) and the manner in which Simon's wife died - The more similar the tendency alleged and the conduct in question, the more probative the evidence.
12:What is the next section that you should consider?
A)

Section 98

Incorrect

Although the evidence could possibly be characterised as coincidence evidence, a more accurate reading is that the evidence is used to prove a tendency, not that the events did not occur as a coincidence. Moreover, the prosecution seek to have the evidence admitted to prove a tendency. Therefore s 97 would be considered first and s 101 considered second.

B)

Section 101

Correct

After considering s 97 the next step is to consider s 101 which applies in criminal proceedings in addition to s 97 to tendency evidence adduced by the prosecution. What will be required for the evidence to be admissible is that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

C)

Section 135

Incorrect

Though the general discretions should be considered, they should be considered after s 101.

D)

Section 136

Incorrect

Though the general discretions should be considered, they should be considered after s 101.

Comments

What a fantastic resource! Love the explanations of both incorrect and correct answers, perfect for both learning and revising.

Thank you, thank you, thank you!! As an external student studying evidence law, it is soooo helpful to have practice tests available that provide answers to check against - cheers for breaking the silence for me ;)

Found this very helpful using a practical example.

You rock Judicial College of Victoria!

Your answer to question 5 is incorrect.

As the defendant is adducing the hearsay evidence, s. 65(8) would be the appropriate subsection. The prerequisites to this exception to the hearsay rule are not as difficult to satisfy as those prescribed by s. 65(2)(c). Please advise if this analysis is wrong. Thank you.

JCV response - Thankyou for pointing this out. Of the answers provided s65(2)(c) was the most appropriate, but we agree that s65(8) is the most relevant exception. We have therefore amended the question so that it does not focus on s65(2).

An excellant test.

Great quiz. Thank you for the material. It made it some aspects of Evidence so much clearer to me!

This and the flow charts are great. It really makes the law easier to understand! Thanks!

I am currently studying for my evidence exam. Thank you Judicial College! You have given me some confidence and clarity in my very foggy headspace!
These questions and flow charts lend great clarity to the context to the rules of evidence. Again, thank you. Please continue with this amazing resource.

thank you for these publications and knowledge tests. Am studying for bar exam and this resource is essential.
Do you intend to put up any more tests?

JCV Response - We have recently published three knowledge tests on the new Community Correction Orders - http://www.judicialcollege.vic.edu.au/publications/victorian-sentencing-....

However, we have no plans at this time to create more Evidence Knowledge Tests.

This is a really great resource

Excellent!

more tests please, they are really helpful :)

Very helpful - a great way to follow the sequence of the Act

A very interesting and useful learning piece.

Was fun and very very useful - I actually consulted the Act and found myself engaged in the problem - did Test No 2 as well (on opinion evidence. Does doing these tests count towards a CPD point??

I did very well at this, much better than SC

This is really useful. Please continue with regularity.

Very good, was surprised I knew most of it.

Keep these scenarios coming...

Aha, mere Justice Studies mature-age student scored 11/12. Fantastic!! I'll come back another day. Yay, something to tell fellow students and the tutors.

This is fantastic.

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