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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?

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.

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.

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.

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?

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.

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.

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.

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?

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.

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.

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.

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.

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

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.

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.

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.

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?

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.

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.

Incorrect

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

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?

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.

Incorrect

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

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.

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?

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.

Incorrect

Although it may be true that the prior conduct does not prove 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.

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.

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?

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.

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.

Incorrect

Section 97 should be considered before s 101.

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?

Correct

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

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.

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).

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?

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.

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.

Incorrect

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

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)

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.

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.

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.

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.

12. What is the next section that you should consider?

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.

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.

Incorrect

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

Incorrect

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