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Flowchart of rules for the admissibility of evidence

RELEVANCE HEARSAY
“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
plain account of what they IMPLIED HEARSAY
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
devoid of inference, evaluation, RES GESTAE (I) 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”
EXCEPTION: Expert completeness: R v O’Malley Pollitt v R (1992) 66 ALJR 613 “Roy got the wrong one”
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
issue is such that special skill CLR 566 “drunken orgy”
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.
Y and voluntary confessions (ie. made
Does the hearsay rule apply?
without threat or inducement) are
No admissible: R v Ireland (1970) 126 CLR
CREDIBILITY Y
Does the opinion rule apply? 321; ss81-90 EA.
Evidence only of a witness’ THE EVIDENCE IS NOT ADMISSIBLE 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 ssible [very strict test]: R v Bedingfield
rule about evidence of judgments
attacked but answers are final: and convictions? (1879) – deceased came out of room
Piddington v Bennet & Wood with throat cut – n/a; Adelaide Chem-
(1940) 63 CLR 533; ss102- No ical v Carlyle (1940) 64 CLR 514 “the
108A EA. Does the tendency rule or jar broke” – n/a; Walton v R (1989) 166
Y
EXCEPTIONS to PvB&W: coincidence rule apply? CLR 283.
(a) Prior convictions; 3. DECLARATIONS BY DECEASED
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;
character; and rules about identification evidence? (f) As to public or general rights
(e) Witness’ physical or No 4. STATEMENTS IN PUBLIC
mental reliability. DOCUMENTS (ss82-98 Evidence Act
Does a privilege apply? Y
1977 (Qld) – Business records); s69 EA
No 5. STATEMENTS OF CONTEMPOR-
PRIVILEGE ANIOUS STATE OF MIND, EMOT-
Should a discretion to exclude the Y
1. LEGAL PROFESSIONAL evidence be exercised? IONS OR PHYSICAL CONDITION.
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.