Flowchart of Rules for the Admissibility of Evidence

Flowchart of rules for the admissibility of evidence

“The fundamental rule governing the admissibility of Essentially, the rule against hearsay prohibits witnesses repeating out-of- evidence is that it must be relevant”: Wilson v R (1970) 44 court statements made by others in order to establish the truth of those ALJR 221 (per Barwick CJ); ss55-56 EA. statements: Subramanium v Public Prosecutor [1956] 1 WLR 965 (PC); Myers v DPP [1965] AC 1001 – Austin Motors’ records; Ratten v The Queen [1972] AC 378 – “Get me the police!”; ss59-61 EA. OPINION

[Normal] witnesses must give a IMPLIED HEARSAY plain account of what they actually perceived through Statements (and conduct) of a person other than the witness, their own physical senses, which were not intended to be assertive of the fact they are RES GESTAE (I) devoid of inference, evaluation, tendered to prove, are still inadmissible as hearsay. interpretation, belief or Incidents in the transaction are Walton v The Queen (1989) 166 CLR 283 “Hello daddy” opinion. admissible if necessary for R v Benz (1989) 168 CLR 110 “My mother’s feeling sick”

completeness: R v O’Malley Pollitt v R (1992) 66 ALJR 613 “Roy got the wrong one” EXCEPTION: Expert witnesses may give opinion [1964] Qd R 226 “kick the evidence where (i) the fact in dog”; O’Leary v R (1946) 73 EXCEPTIONS TO THE CLR 566 “drunken orgy” issue is such that special skill HEARSAY RULE or learning is required to assess 1. ADMISSIONS/CONFESSIONS: it; and (ii) the witness has Admissions are statements made by the sufficient skill or learning in accused or parties to an action that are that area: Clark v Ryan (1960) Evidence Act 1995 (Cth) (“EA”) against their interests. Confessions are a 103 CLR 486 per Dixon CJ at No special kind of admission in criminal 489-492; Weal v Bottom (1966) Is the evidence relevant? matters whereby the accused gives a full 40 ALJR 436 per Barwick CJ Yes acknowledgement of guilt. Admissions at 438-9; ss76-80 EA. and voluntary confessions (ie. made Does the hearsay rule apply? Y without threat or inducement) are No admissible: R v Ireland (1970) 126 CLR CREDIBILITY Y 321; ss81-90 EA. Does the opinion rule apply? Evidence only of a witness’ 2. RES GESTAE (II): statements made credibility must not be led in No within the events leading to the trial (ie. evidence-in-chief. In cross- Does the evidence contravene the part of the single transaction) are admi- examination, credibility may be Y rule about evidence of judgments ssible [very strict test]: R v Bedingfield attacked but answers are final: and convictions? (1879) – deceased came out of room Piddington v Bennet & Wood

ADMISSIBLE with throat cut – n/a; Adelaide Chem- (1940) 63 CLR 533; ss102- No ical v Carlyle (1940) 64 CLR 514 “the

108A EA. jar broke” – n/a; Walton v R (1989) 166

Does the tendency rule or NOT Y coincidence rule apply? CLR 283. EXCEPTIONS to PvB&W: 3. DECLARATIONS BY DECEASED (a) Prior convictions; No (b) Bias, impartiality or (a) Against interest; Does the credibility rule apply? Y interest of witness; (b) In course of duty; (c) Prior inconsistent No (c) As to pedigree; statements; (d) Dying declarations; (d) Witness’ general bad Does the evidence contravene the Y (e) Contents of Will; rules about identification evidence? THE EVIDENCE IS character; and (f) As to public or general rights (e) Witness’ physical or No 4. STATEMENTS IN PUBLIC DOCUMENTS (ss82-98 Evidence Act mental reliability. Y Does a privilege apply? 1977 (Qld) – Business records); s69 EA

No 5. STATEMENTS OF CONTEMPOR- PRIVILEGE ANIOUS STATE OF MIND, EMOT- Should a discretion to exclude the 1. LEGAL PROFESSIONAL Y IONS OR PHYSICAL CONDITION. evidence be exercised? PRIVILEGE: Communi- 6. STATEMENTS PROVING NATURE cations where dominant No OF BUSINESS eg. Brothel

purpose is to provide legal THE EVIDENCE IS ADMISSIBLE 7. EVIDENCE IN COMMITTAL OR advice are inadmissible: OTHER PROCEEDINGS. Esso v Federal Commiss- ioner for Taxation (1999) 74 8. “FIRST-HAND” HEARSAY ALJR 339; ss117-126 EA (Commonwealth only) ss62-68 EA

2. “WITHOUT PREJUDICE CHARACTER/PROPENSITY/TENDENCY

NEGOTIATIONS”: Are Evidence of the general bad character of the accused JUDGE’S DISCRETION inadmissible save as to or other party is inadmissible (:Attwood v R (1960) A judge has a discretion to exclude evidence costs. 102 CLR 353) unless that person attempts to establish (eg. a confession) on the ground that it is highly 3. PRIVILEGE AGAINST their own good character: R v Perrier [1991] 1 VR prejudicial and not probative (reliable) or for SELF-INCRIMINATION 697; Lowery v The Queen [1974] AC 85. public policy reasons (eg. evidence illegally (does not apply to corporat- Evidence of other offences is inadmissible unless the obtained): R v Ireland (1970) 126 CLR 321; ions): EPA v Caltex (1993) evidence is “strikingly similar” ie. no other Foster v R (1993) 113 ALR 1; Driscoll v R 118 ALR 392; s128 EA. reasonable explanation: Makin v AG(NSW) [1894] (1977) 137 CLR 517; Bunning v Cross (1978)

4. COMMUNICATIONS IN AC 57; Hoch v The Queen (1988) 165 CLR 292; 52 ALJR 561; Ridgeway v R (1995) 69 ALJR MARRIAGE see Evidence Sutton v The Queen (1984) 152 CLR 528; Pfennig v R 484; R v Swaffield (1998) 192 CLR 159; Act 1977 (Qld) ss18, 21. (1995) 127 ALR 99 (HCA); ss94-101 EA. s130 Evidence Act 1977 (Qld); ss135-139 EA.