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Bar Exam - Evidence - Cases Questions with 100% correct answers | verified | latest update 2024
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Bar Exam - Evidence - CasesKneebone (1999)
Facts: child sex assault case, complainant's mother was allegedly eye witness (per
complainant). Prosecution did not call the mother and then tried to invoke Jones v
Dunkel against defendant. - ANS-Principle(s): Prosecution has a duty to call all material
witnesses (impartial presentation of all the facts) unless proper basis for not doing so
and failure to do so can result in miscarriage of justice [Cf: s 38 EA - unfavourable
witnesses] [Ethics: BR 83 and 89]
Mahmood v WA (2008)
Facts: Defendant convicted of murder of wife based on circumstantial evidence
including (an unfavourable) part of a video in which D talked to police following murder.
P asked jury to conclude from D's demeanour that he was guilty. D was denied leave to
re-open and tender whole video. Trial judge gave a warning about the video (should not
draw inference suggested by P). - ANS-Principle(s): (1) Distinction between comment
and direction - comment (however strong) may be ignored but direction must be
followed. The failure to give direction amounted to an error of law
SH v R (2012)
Facts: SH convicted of child sexual assault. Complainant was only witness - found not
competent to give sworn evidence (s 13(3) EA) so gave unsworn evidence (s 13(4)).
However, judge did not give tell the witness all the matters required under s 13(5). -
ANS-Principle(s): Must comply (in substance) with s 13(5) EA if unsworn evidence is to
be permitted. These matters are: (a) important to tell truth; (b) tell court if they don't
know or remember something; (c) statements put - can agree if true and no pressure to
agree if not true. Trial not conducted according to law and conviction set aside.
Browne v Dunn (1983)
What is the rule? - ANS-Principle(s): the rule is that a party must put the substance of its
case to a witness insofar as it concerns that witness (i.e. any matter on which the
witness could comment). e.g. if intending to make adverse inference re credibility - the
matter must be put to the witness. Witness can be recalled to remedy - s 46 EA.
ACCC v Air NZ (No1) (2012); Gregg v R (2020)
Authority for? - ANS-Principle(s): Inferences as to relevance (s 56) can be drawn from
the face of the document. Relevance is the test for admission. Authenticity is not a
prerequisite for admission.
, Smith v The Queen (2001)
Facts: Police officers gave evidence from CCTV footage identifying defendant. -
ANS-Principle(s): The evidence was not relevant (s 56) - the police officers were in no
better position and the jury to identify the defendant. The test for relevance is a low bar
(s 55).
Lee v The Queen (1998) HCA
Facts: Accused allegedly made admission to a witness. Witness then told police of
admission (written statement). Witness denied admission at trial. - ANS-Principle(s):
what witness told police was admissible as truth of the prior inconsistent statement
(first-hand hearsay) but not as truth of the fact of the admission. Cf: Section 60 EA: the
hearsay rule does not apply to evidence (including second hand hearsay) that is
admitted because it is relevant for another purpose and then can be used for hearsay
purpose unless it is admission in crim proceedings.
Esso v Commissioner of Taxation (1999) HCA
Facts: Esso claimed privilege over discovery documents. - ANS-Principle(s): ss 118/119
EA privilege did not extend to discovery under common law [Cf: does now due to s
131A in NSW jurisdictions]. Confirmed test under ss 118/119 is dominant purpose test.
Mann v Carnell (1999) HCA
Facts: ACT Govt shared documents with MP under confidentiality regime. Mann
claimed privilege waived (in context of prelim discovery). - ANS-Principle(s): Affirmed
Esso (ss 118/199 EA apply to discovery etc). Waiver test = whether the actions of the
party (considered objectively) and considering (where appropriate) the principles of
fairness, is inconsistent with the maintenance of the privilege. [Cf: s 122(2) EA now
reflects this position].
Stanoevski v The Queen (2001) HCA
Authority for? - ANS-Principle(s): The Court must take into account the matters in
section 192(2) in considering whether to grant leave, give permission, or made a
direction under the Act. Those consideration are:(a) Effect on length of hearing; (b)
unfairness (to party or witness); (c) Importance of evidence; (d) nature of proceedings;
(e) Power of Court to adjourn or make other orders.
In addition, court must take into consideration "matters which may be relevant in a
particular case".
Jones v Dunkel (1959) HCA
What is the rule? - ANS-Principle(s): This rule operates where there is an unexplained
failure by a party to give evidence, to call witness(es) or to tender documents or other
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