Exam (elaborations)
Bar Exam, Evidence cases 1.
- Institution
- Crimes Against Property - SCCJA.
Bar Exam, Evidence cases 1.
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Bar Exam, Evidence cases 1ACCC v Air New Zealand Ltd (No 1) (2012) 207 FCR 448 at 467-71 - ANS-Facts
AirNZ object to various documents.
The documents were, in part, communications between other airlines and internal
communications within those airlines (not AirNZ and Garuda) - such as emails attaching
minutes. The documents had been produced under compulsory processes.
Documents were also obtained to on the basis that they had not been authenticated (i.e.
spreadsheet). No direct evidence as to where the documents came from and who
produced them.
Held: The tender was accepted as the documents were relevant.
There is no requirement that only 'authentic' documents be admitted into evidence. The
authenticity of a document will ultimately be for the tribunal of fact. Documents will be
admissible if they are relevant. Section 58 provides that reasonable inferences can be
drawn from the contents of documents to determine relevance.
The Court declined to follow Rusu and cites O'Meara and Lee.
Note: the hearsay rule was not engaged here - adduced for a non-hearsay purpose (not
necessary to establish an exception)
Adam v The Queen (2001) 207 CLR 96 - ANS-Facts
Police officer in altercation with a group of youths - fatally stabbed.
Witness initially charged with murder and in interviews with police made statements
supporting the prosecution's case against appellant. Charges withdrawn against witness
and laid against appellant.
At the trial it became apparent to the prosecution that the witness might not be willing to
give sworn evidence that accorded within the police interview.
Voir Dire / Basha type inquiry to determine what evidence the witness would give
(indemnity and certificate given). Leave under s 38 to cross-examine about the
statements made to the police. End of voir dire - gave an advanced indication that if
evidence accorded with the voir dire leave should be granted under s 38(1) (satisfied
(a),(b) and (c)) and (3), and that the previous representations should not be confined
under s 136 to the issue of credibility (available as proof of the facts asserted).
, Called during hearing and leave under s 38 formally given. The judge gave an extensive
and detailed directions about the care with which the jury needed to consider the
evidence of the witness.
Held: appeal dismissed. Decision of trial judge and Court of Criminal Appeal upheld.
Principles
Propriety of reception of a prior inconsistent statement - common law principle that it
was improper to call a witness for the sole purpose of getting before a jury a prior
inconsistent statement does not apply under the Act.
Relevance - plainly, evidence of the prior inconsistent statements related to credit but
not only to credibility. If what was said in the prior inconsistent was also relevant to
several facts in issue.
Leave to cross-examine - the prior inconsistent statements could only be put if leave
was given to cross-examine.
- No doubt s 38(1)(b) and (c) satisfied - probably also (a) but not nece
Browne v Dunn (1893) 6 R 67 - ANS-Facts
Action against a solicitor for libel. Solicitor drafted a document on instructions that was
signed by various people. The plaintiff alleged that the solicitor had not been engaged
by and had not drawn up the document on the instructions of the persons who signed
the documents.
The question was whether certain persons had retained the solicitor.
The signatories gave evidence and were not cross-examined as to the allegations of the
sham.
Principles
It is essential for the proper conduct of a case, that where it is suggested that a witness
is not telling the truth, that this be brought to the witness's attention in cross-examination
showing the imputation that is intended to be made - giving the witness the opportunity
to explain.
The rule does not extend to where the witness has been given notice of the intention to
impeach his credibility. The notice will need to be distinct, unmistakable and directed at
the precise point upon the witness is to be impeached (so as to have been given the
opportunity of giving an explanation). A further possible exception is where the
witnesses story is so incredible that the most effective course would be not to
cross-examine (Lord Morris).
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